The Parliament of the Commonwealth of Australia and Indigenous Peoples 1901-1967

The Parliament of the Commonwealth of Australia and Indigenous
Peoples 1901-1967

John Summers
Politics and Public Administration Group
31 October 2000

Vision in Hindsight

Vision in Hindsight is a Department of
the Parliamentary Library (DPL) project for the Centenary of
Federation.

The Vision in Hindsight: Parliament and the
Constitution will be a collection of essays each of which
tells the story of how Parliament has fashioned and reworked the
intentions of those who crafted the Constitution. The unifying
theme is the importance of identifying Parliament's central role in
the development of the Constitution. In the first stage, essays are
being commissioned and will be published, as IRS Research Papers,
of which this paper is the tenth.

Stage two will involve the selection of eight to
ten of the papers for inclusion in the final volume, to be launched
in conjunction with a seminar, in November 2001.

A Steering Committee comprising Professor
Geoffrey Lindell (Chair), the Hon. Peter Durack, the Hon. John
Bannon and Dr John Uhr assists DPL with the management of the
project.

In 1901 it might have been expected that the
Commonwealth Parliament would play little role in Aboriginal
matters. The Constitution of the Commonwealth of Australia, as it
existed, specifically excluded the Parliament from making special
laws for Aborigines in the States. However, as a legislature and as
forum for debate on national issues, the Parliament always had the
power to shape the rights and entitlements of Indigenous peoples
and to play a role in determining the position of Aborigines within
Australian society.

First, the Commonwealth Parliament legislated in
relation to certain rights and entitlements of Indigenous peoples
under Commonwealth law-the Commonwealth franchise and Commonwealth
benefits and entitlements. Second, in 1911 the Commonwealth
obtained undivided legislative power over the Northern Territory
and thereby direct responsibility for the administration of
Aboriginal Affairs in the Territory. Further, in the 1950s and
1960s the Commonwealth Government's establishment of the Woomera
rocket range, and its involvement in the British nuclear tests in
the north-west of South Australia gave it direct powers and
involvement in relation to some Aboriginal groups outside the
Northern Territory.

Given the role commonly attributed to the
Parliament in the system of responsible cabinet government, it
might have been expected that the Parliament would have played a
significant role in checking and questioning the Government in its
use of its powers in these areas. However, in the case of the
Commonwealth Government's administration of the Northern Territory
and Woomera and the British Nuclear Tests, and to some extent in
its enactment of Commonwealth legislation, it is the things that
the Parliament did not do, rather than what it did do, that are
most noteworthy.

In relation to Commonwealth legislation the
first matter directly affecting Indigenous peoples was the
Commonwealth Franchise Bill 1902 and in this case the Parliament's
role was decisive. The Parliament rejected Government legislation
for a uniform franchise which would have included all Indigenous
peoples, and after a lengthy debate legislated to exclude
'aboriginal natives of Australia' from the Commonwealth franchise.
For the next half century or so, often with little or no debate,
the Commonwealth Parliament legislated systematically to
discriminate against Indigenous peoples, denying them the same
citizenship rights and benefits as other Australians. To the extent
that the legislation was debated parliamentarians almost invariably
rationalised the exclusion in terms of 'race' or 'blood' or
'caste'. Legislation granting or denying benefits or rights was
expressed in terms of 'race'-a person's legal position was
determined by his or her proportion of Aboriginal 'blood'.

In relation to the Northern Territory the
Commonwealth obtained undivided power at a time of special
importance for Aboriginal affairs. Aborigines were a majority
population in the Territory and most still lived in a frontier
situation or in more remote areas beyond the boundaries of European
occupation. There was an opportunity for the Commonwealth
Parliament to take a lead in Aboriginal Affairs and to set a course
different from that of the States. The Parliament, however,
delegated its legislative power in the Northern Territory to the
Government to legislate by Ordinance and Regulation. In parallel
with developments in the States the whole thrust of the
administration of Aboriginal Affairs in the Territory, until after
the Second World War, was toward greater restriction of Aborigines'
rights through regulation and institutionalisation and the
enactment of discriminatory laws which applied to wider and wider
categories of people.

In the 1920s and 30s, in response to reports of
abuses of Aborigines in the north, there was growing political
pressure on the Government in relation to the condition of
Aborigines in the Northern Territory. In the Parliament there were
several attempts by members from all sides to have the Government
improve the welfare provisions for Aborigines but the pressure was
never sustained. The Parliament as a whole showed little interest
in reports which revealed the appalling conditions of the
Aborigines in the Territory and ignored reports of a punitive
expedition against Aborigines. The most important questioning of
the Government and pressure for reform came from humanitarian and
Aboriginal support groups; in the face of 'spectacular injustices'
little was heard from the Parliament.

In the case of the development at Woomera and
the British Nuclear Tests, the Parliament was almost completely
silent. Very little was done by the Parliament to discover what was
actually involved in the nuclear tests or what effect the tests
were having on Aborigines. Even when important questions were
raised elsewhere Members of Parliament from both sides chose not to
press the matter.

A turning point in Indigenous policy came after
the Second World War when the social changes which had been taking
place in Australia were reflected in the election, to both sides of
the Parliament, of a small number of members who had a strong and
persistent interest in Aboriginal welfare. In the early 1950s, with
bi-partisan support in the Parliament, and against a background of
persistent and tireless campaigning by Aboriginal and humanitarian
organisations for equal citizenship rights, the Commonwealth
Government adopted a policy of assimilation and equal rights for
Indigenous peoples and announced plans to implement the policy in
the Northern Territory. Very slowly, through the 1950s and 1960s,
the discriminatory provisions in Commonwealth (and State) laws were
repealed.

Importantly, however, in the Northern Territory
the Commonwealth was very slow to give effect to the stated policy
of equal rights. The old practices of regulation and
institutionalisation continued and the extremely poor pay and
working conditions of Aboriginal workers remained largely
unchanged.

A decisive change occurred in the mid-1960s when
Aboriginal communities in the Territory began to press for
Indigenous rights in a new way. The Aboriginal community from
Yirrkala in Arnhem Land pursued a claim to obtain ownership of
their land and at Wave Hill cattle station the Gurindji people went
on strike and sought to obtain ownership of their land. The
Commonwealth Government and Parliament had overseen a system under
which the Aborigines in the Northern Territory were largely
pauperised and excluded, with their lives regulated by
administrators. The initial Aboriginal protests in the Northern
Territory against discrimination and poor treatment broadened into
a much wider campaign. Aboriginal communities no longer sought just
civil rights but now pursued Indigenous rights-land rights and
control over their own lives. Although the institution of
Parliament did play a role in the Yirrkala claim, the new campaign
for Indigenous rights was not taken up in the Parliament until the
Aboriginal groups and their white supporters had made it a national
and international political issue.

One issue which had been raised periodically in
the Parliament since its first session was the Constitutional
provisions on Indigenous peoples. In the 1960s various proposals
for constitutional amendment were discussed. A proposal for
constitutional change-to remove s. 127, which stipulated that for
the purposes of the census 'aboriginal natives shall not be
counted', and to remove from s. 51(xxvi) the prohibition on the
Commonwealth Parliament making special laws for 'the aboriginal
race in any State'-became a major objective of Indigenous and other
reform groups. Given the Commonwealth Parliament's legislative
record and the history of neglect in the Northern Territory it is
surprising that the campaign for Aboriginal rights should have
placed such importance on extending Commonwealth powers. However,
for many of those supporting the change, the concern was simply the
removal of provisions which were discriminatory and insulting to
Indigenous peoples. A Referendum proposal to remove s. 127 from the
Constitution and amend s. 51(xxvi) was overwhelmingly passed in
1967.

Despite the great support for the changes to the
Constitution, the Coalition Government was reluctant to exercise
the new powers over Indigenous affairs. Inevitably, however, given
that the Commonwealth Parliament now had this power, the political
campaign for Indigenous rights focused on the Commonwealth. For the
last three decades of the century Indigenous affairs were an
inescapable issue for the Commonwealth Government and
Parliament.

Introduction

The Commonwealth
Parliament and Indigenous Peoples 1901-1967

This paper discusses the Commonwealth Parliament
and Indigenous affairs in the period before 1967 when the original
constitutional provisions relating to Indigenous matters were
changed by referendum. Many of the most notable events relating to
Indigenous matters took place in the Parliament after this time.
The only two Aborigines to be elected to the Commonwealth
Parliament won their positions after 1967. Neville Bonner (Liberal,
Queensland) was a Senator from 1971 until 1983, and Aden Ridgeway
(Australian Democrat, NSW) was elected to the Senate in 1998. Also,
much of the most notable legislation of the Commonwealth Parliament
directly related to Indigenous peoples was passed after 1967 when
the Commonwealth Parliament's powers in this area had been greatly
expanded. These included the Racial Discrimination Act 1975, the
Aboriginal Land Rights (NT) Act 1976, the Aboriginal and Torres
Strait Islander Heritage Protection Act 1984, the Native Title Act
1993, the Hindmarsh Island Bridge Act 1997 and the Native Title
Amendment Act 1998. This legislation is not dealt with here. Nor
are the important and controversial post-1967 discussions in the
Parliament such as the debate on the 'stolen generation' following
the publication in 1997 of Bringing Them Home, the Report of the
Human Rights and Equal Opportunity Commission on its Enquiry into
the Separation of Aboriginal and Torres Strait Islander Children
from their Families,(1) or the debate in the late 1990s
on Aboriginal reconciliation.

The focus of this paper is on the Parliament in
the period before 1967 when it operated under the original
constitutional provisions relating to Indigenous peoples, as they
were drafted by the framers of the Constitution.

The Constitution which came into effect in 1901
contained two provisions explicitly relating to Aborigines. First,
s. 51(xxvi), the 'race power', gave the Commonwealth Parliament
power to make laws with respect to 'the people of any race, other
than the aboriginal race in any State, for whom it was deemed
necessary to make special laws'. Aboriginal affairs remained within
the jurisdiction of the States and, on the face of it, the
Commonwealth Parliament would have little or no role to play in
Aboriginal affairs. Second, s. 127 of the Constitution read '[i]n
reckoning the numbers of people of the Commonwealth, or of a State
or part of the Commonwealth, aboriginal natives shall not be
counted'.

The rationale behind s. 127 is not absolutely
clear. Two matters for which the measure of the population of the
States could be of consequence were the apportionment of revenue,
or costs, between the States, and the distribution of House of
Representatives seats among the States.(2) In the case
of s. 51(xxvi) there is also doubt about what the drafters of the
Constitution intended. From the relatively brief discussion of the
section in the Convention Debates it appears that the 'race power'
was intended to give the Commonwealth power to deal with 'coloured'
groups from outside Australia-such as people who may have come to
Australia as indentured labourers-but in line with the general
federalist philosophy of the Constitution, Aboriginal matters would
remain with the States.(3)

For the law-makers the important question about
the qualifying phrase, 'other than the aboriginal race in any
State', in s. 51(xxvi) was what legislative measures were outside
the powers of the Commonwealth Parliament on account of it. One
possible meaning was that it prevented Parliament from making
any 'special laws' for Aborigines and therefore from
making laws which contained measures which treated Aborigines
differently from non-Indigenous peoples. If this were the proper
understanding of the meaning of the qualification to s. 51(xxvi) it
could have been seen as a constitutional protection against
Commonwealth laws which discriminated against Aborigines. This
interpretation, however, is not the accepted one.(4) As
will be discussed in greater detail below, many laws of the Federal
Parliament, which were never challenged on constitutional grounds,
discriminated against Aborigines in many ways. The qualification to
s. 51(xxvi) only denied the Parliament power to enact legislation
for Aborigines which would have relied entirely on s. 51(xxvi) and
for which the Constitution made no other grant of power to the
Commonwealth Parliament. Thus, laws dealing with, for example, the
Commonwealth franchise or the payment of pensions were within the
law-making power of the Parliament because of the constitutional
provisions granting those powers to the Commonwealth Parliament.
Special provisions in those laws which disadvantaged, or
advantaged, Aborigines were not made invalid on account of the
qualification 'other than the aboriginal race in any State' in s.
51(xxvi).

A related issue which has often been raised in
relation to the qualification to s. 51(xxvi) and s. 127 is the
question of Aboriginal citizenship. It is part of a pervasive
popular mythology that until the 1967 referendum, which removed s.
127 and the qualifying words from s. 51(xxvi), the Constitution
denied Aborigines citizenship rights and that the 1967 referendum
resulted in Aborigines achieving citizenship. It is important in
the discussion of the role of the legislature in Aboriginal Affairs
to be clear about the extent to which it was actually the
Constitution which denied rights to Aborigines, and the extent to
which the denial of rights was the result of deliberate legislative
and executive acts. In terms of the legal rights of Aborigines the
Constitution, as it stood, did no more than prevent the
Commonwealth Parliament from making 'special laws' for 'the
aboriginal race in any state'. The legal rights of Aborigines in
relation to Commonwealth matters was not the product of the
restriction on the Commonwealth Parliament's powers, but on the
rights and entitlements that were extended to, or denied to,
Aborigines in Commonwealth legislation.(5) The provision
did, however, deny the Commonwealth Parliament the legislative
power which would have been necessary for the Commonwealth to move
into the whole general area of Aboriginal Affairs. The overall
administration of Aboriginal Affairs and the entire legal and
administrative framework which governed Indigenous peoples in the
States could not have been taken over by the Commonwealth.

Another question about the negative provisions
in the Constitution is exactly who was covered by them. There is no
definition in the Constitution of either expression-'aboriginal
race' in s. 51(xxvi) or 'aboriginal natives' in s. 127. One
unresolved matter is whether the expressions included Torres Strait
Islanders.(6) At the time of Federation Aborigines were
subject to a range of State laws which variously classified people
as Aboriginal or not depending not only on their parentage but also
on their circumstances and in some cases classified them
differently for different purposes.

State laws, covering matters such as the supply
and possession of alcohol or opium, giving evidence in court, work
conditions, summary trial for certain offences, marriage and sexual
relations, possession of firearms, and the guardianship of
children, denied Indigenous peoples rights which were available to
non-Indigenous peoples, and restricted relations between Indigenous
and non-Indigenous peoples.

In Western Australia and Queensland Aborigines
were explicitly denied the right to vote on the same terms as other
residents.(7) In New South Wales and Victoria many
Aborigines were effectively denied voting rights by a requirement
that voters not be in receipt of charitable aid. Only in South
Australia were Aboriginal men and women entitled to vote. Elsewhere
in Australia Aboriginal women were excluded either because of
gender or race.(8)

One other provision of the Constitution,
ssection 41, that does not explicitly mention Aborigines, is
relevant because it figured prominently in debates about Aboriginal
rights in the Commonwealth Parliament. section 41 states:

no adult person who has or acquires a right to
vote at elections for the more numerous House of the Parliament of
a State shall, while the right continues, be prevented by any law
of the Commonwealth from voting at elections for either House of
the Parliament of the Commonwealth.

In the Convention Debates proponents of s. 41
were concerned to ensure that women who, in two of the States had
won the right to vote, would not be denied it in Commonwealth
elections (and would not campaign against and vote against
acceptance of the Constitution). Exactly what s. 41 meant in terms
of ensuring Commonwealth voting rights for those Aborigines already
entitled to vote in State elections became a most contentious
matter. From one point of view s. 41 should have at least
guaranteed the right to vote in Commonwealth elections of
Aborigines in those States where they were entitled to vote but, as
discussed below, that turned out not to be the case.

The question of Aboriginal rights and the
constitutional powers of the Commonwealth in relation to Aboriginal
matters was raised starkly in the House of Representatives less
than three months after its opening. On 26 July 1901 Mr Mahon, the
ALP Member for Coolgardie, moved to establish a Royal Commission on
the conditions of Aborigines in northern Western
Australia.(9) Mindful of the likely objection, that the
Constitution gave the Commonwealth 'no right to interfere' in the
matter, he raised the question in terms of the Commonwealth's
constitutional powers. He moved:

[T]hat, with a view to determine the expediency
or otherwise of amending section 51, sub-section (26), of the
Constitution Act by the omission of the words 'other than the
aboriginal races of any State,' it is, in the opinion of this
House, desirable that a Royal Commission should be appointed to
investigate and report-

on the condition of the aboriginal inhabitants
of Western Australia north of the 30th parallel of latitude,

on the system by which aboriginal natives are
assigned and indentured to white employers, and

on the administration of justice in the lower
courts of Western Australia in so far as the aboriginal inhabitants
of that State are or have been affected thereby.(10)

In this first speech on Aboriginal Affairs in
the Commonwealth Parliament Mr Mahon raised matters which would
become important in the rationale for the constitutional change in
1967, but they were matters which received very little attention in
the Parliament for the next four decades. He argued that 'in this
particular matter the reputation of the whole people of Australia
is at stake'.(11) Newspapers overseas, and in Australia,
had carried stories of ill-treatment of indentured and assigned
Aboriginal workers in Western Australia who it was claimed were in
a position akin to slavery. Mr Mahon argued that since Western
Australia had obtained self-government in 1890 amendments to the
laws governing Aborigines and Aboriginal employment had allowed
abuses of Aboriginal rights in the lower courts. Under a 1892 law
on Aboriginal employment, Aborigines found guilty of a misdemeanour
at a summary hearing could be imprisoned and flogged. Provisions
which had explicitly prohibited an interested party from hearing a
charge as the sole Justice of the Peace had been removed from the
law. In remote regions, when no other Justice of the Peace was
available, an employer could hear charges against an Aborigine
sitting as a single Justice of the Peace. Seeking recourse in
higher courts was not a practical possibility for Aborigines in
remote areas.(12) Despite the forcefulness of his
speech, Mr Mahon did not provoke any action from the Parliament.
There was no further debate on his motion and on 10 October 1902,
at the close of the First Parliament, it lapsed.(13)
There was, however, another matter before the First Parliament
which required a decision about Aboriginal rights which could not
be left to lapse at the end of the session.

The First Parliament was not elected with a
uniform franchise. The voting rights were based on existing
franchise laws in each of the States. Thus, in South Australia and
Western Australia women had the vote, in South Australia Aborigines
(men and women) were entitled to vote and in Queensland and Western
Australia Aborigines were explicitly denied voting rights.

In April 1902 Senator the Hon. R. E. O'Connor
(Vice-President Executive Council) introduced the Commonwealth
Franchise Bill into the Senate with the object of instituting a
'uniform franchise for the Commonwealth'.(14) Clause 3
read:

Subject to the disqualifications hereafter set
out, all adult persons-

(a) who are inhabitants of Australia and have
resided therein for six months continuously, and

(b) who are natural born or naturalized subjects
of the King, and

(c) whose names are on the Electoral Roll for
any Electoral Division,

shall be entitled to vote at the election of
Members of the Senate and the House of Representatives.

One matter of controversy was that this
provision extended the franchise to women for Commonwealth
elections throughout Australia. An attempt in the House of
Representatives to amend the clause to confine the right to 'male
persons' obtained little support.(15) More controversial
was the fact that it would grant the Commonwealth franchise to
Aborigines and to 'coloured people' from overseas. In the
parliamentary debate on the Bill these two matters became
inextricably mixed.

O'Connor argued that people who are affected by
the laws of the Parliament and have to obey those laws should not
be denied the right to vote for those who make the laws. In
relation to Aborigines he said:

[w]here they have settled down in occupations of
some kind, I fail to see why they should not be allowed to vote in
the same way as is any other inhabitant of the country. I think we
might treat this question of the position of aboriginals under our
electoral laws not only fairly, but with some generosity.
Unfortunately they are a failing race. In most parts of Australia
they are becoming very largely civilised, and when they are
civilised they are certainly quite as well qualified to vote as are
the great number of persons who already possess the
franchise.(16)

In relation to 'coloured people' who were
British subjects O'Connor argued that the Immigration Restriction
Act would '... enable us to shut out altogether any influx of
coloured persons into Australia, whether British subjects or not'.
However, no people who were already in Australia and who were
naturalised should be disenfranchised. The strongest argument for
the White Australia Policy, he said, was that 'we do not want to
have in our community any section which is in a servile condition;
we do not want to have any proportion of our community
disenfranchised and in a position of political inferiority, having
no right to a voice in the making of laws'.(17)

The Government argument did not prevail. Senator
A. P. Mathieson (Free Trade, WA) moved an amendment to add the
words:

no aboriginal native of Australia, Asia, Africa,
or the islands of the Pacific, or persons of the half blood shall
be entitled to have his name placed on the electoral roll, unless
so entitled under s. 41 of the Constitution.(18)

By current standards the language of the debate
is unbelievable. Senator Mathieson argued that in the matter of
Aboriginal votes there was no need for uniformity:

surely it is absolutely repugnant to the greater
number of the people of the Commonwealth that an aboriginal man, or
aboriginal lubra or gin-a horrible, degraded, dirty creature-should
have the same rights, simply by virtue of being 21 years of
age, that we have, after some debate today, decided to give to our
wives and daughters. To me it is as repugnant and atrocious a
legislative proposal as any one could suggest.

And later:

why should this parliament force a measure which
is absolutely repugnant to the greater number of people of the
Commonwealth on those States which have hitherto kept themselves
clear from this slur.(19)

One concern of Senator Mathieson was that
employers of Aborigines in pastoral districts would be able to 'put
everyone of these savages and their gins upon the federal roll' and
then instruct them how to vote.(20)

Also notable were the arguments of Senators who
spoke for Aboriginal rights, and made reference to Aborigines being
the original inhabitants of the land and to the injustice involved
in denying rights to a people on the basis of their
colour.(21) Senator O'Connor, who spoke for the
Government in the Senate, said that:

... it would be a monstrous thing, an unheard of
piece of savagery on our part, to treat the aboriginals, whose land
we were occupying to deprive them absolutely of any right to vote
in their own country, simply on the grounds of their colour, and
because they were aboriginals.(22)

Senator T. Playford (Protectionist, SA) made a
similar argument:

I contend that it would be a heartless thing to
disenfranchise Aborigines. It is absurd that we should say we are
so frightened of the original inhabitants of this continent that we
dare not allow them the right to vote.(23)

Senator Playford, however, did see the Chinese
as a threat and said 'I am inclined to vote for the portion which
relates to Asiatics, Africans, and Polynesians, but I shall not
vote for the portion relating to aboriginal
natives'.(24)

The Senate, by twelve votes to eight, supported
the amendment but without the restriction on the voting rights of
the 'aboriginal natives of Australia'.(25)

In the House of Representatives two members
spoke against an exclusion of Aborigines which applied to them 'as
a class' simply because of their race and without any consideration
to their circumstances. Mr J. B. Ronald (ALP, Southern Melbourne,
Vic.) said that:

[t]o draw a 'colour line' and say that because a
man's face is black he therefore is not able to understand the
principles of civilization is misanthropic, inhumane, and
unchristian.(26)

However, a motion of Mr H. B. Higgins
(Protectionist, Northern Melbourne, Vic.), to amend the Bill to
exclude 'aboriginal natives of Australia' from the franchise and to
remove the exclusion of people 'of the half blood' was supported by
27 members to five against.(27)

As passed by the House of Representatives, and
agreed to by the Senate, the provision read:

no aboriginal native of Australia, Asia, Africa
or the Islands of the Pacific except New Zealand shall be entitled
to have his name placed on the Electoral Roll unless so entitled
under section forty-one of the Constitution.(28)

The Commonwealth Franchise Act 1902 was
important for a number of reasons. In a real sense it was the
Parliament which framed the legislation. The provisions on the
franchise and the wording were not the result of a party vote
'rubber stamping' the Government's legislation. The Government had
proposed a uniform franchise with no distinctions on the basis of
'race', ethnicity or place of birth. This was rejected by the
Parliament in favour of a number of exclusions from the
Commonwealth franchise which were expressed in terms which became
the pattern for much legislation which was to come.

Having debated the matter vigorously and set the
patterns of excluding Indigenous peoples from one basic right,
there seemed to be no impetus within the legislature to raise the
matter again. A series of laws, many following the formula
established in the Franchise Act for denying benefits to
Aborigines, was enacted. The phrase 'aboriginal natives of
Australia' was a standard description of those to be excluded or
denied rights.

Several laws contained provisions which,
although they did not explicitly refer to Indigenous peoples,
excluded 'colour labour'. Subsection 16(1) of the Posts and
Telegraphs Act 1901 provided that, '[n]o contract or
arrangement for the carriage of mail shall be entered into on
behalf of the Commonwealth unless it contains a condition that only
white labour shall be employed in such carriage.'

The Schedule of Excise Duties under the
Excise Tariff Act 1902 provided for a rebate to the
growers of sugar cane and beet provided that 'white labour only has
been employed'. The Sugar Bounty Act 1903 which provided
for the payment of a bounty to growers of sugar cane and beet
contained a requirement that no bounty would be paid for production
that was grown on land which was 'cultivated by other than white
labour' or production from planting which was done by 'other than
white labour'. The Sugar Bounty Act 1905 contained similar
provisions but also exempted Aborigines from the 'white labour'
requirement. Clause 10 stated that 'the employment of any
Aboriginal native of Australia in the growing of sugar-cane or beet
shall not prejudice any claim to bounty under this Act'. The
Bounties Act 1907 contained similar provisions about
'white labour' and also the exemption of 'aboriginal natives of
Australia'.

The Emigration Act 1910 could be seen
as a protective measure for children and 'aboriginal natives'. The
protection, however, was achieved by diminishing the legal status
of Aborigines. The Act prohibited the emigration of children
contracted to perform theatrical and other work outside Australia
and any European child, unless in the care of a European adult, and
'any aboriginal native'. The Minister, the Hon.
E. L. Batchelor (ALP, Boothby, SA), said '[t]he
aborigines of Australia ought not to be exploited by persons who
merely wish to make money out of them.'(29) The only
aspect of the provision which was debated was the definition of
'aboriginal native' which would apply under the Act. After
some debate 'aboriginal native' was defined to include 'any native
having one aboriginal parent'.(30)

Under paragraph 16(1)(c) of the Invalid and
Old-age Pensions Act 1908 which established a national system
of means tested pensions for residents of 25 years or more, old-age
pensions were not payable to 'Asiatics (except those born in
Australia), or aboriginal natives of Australia, Africa, the Islands
of the Pacific, or New Zealand'. In the same terms subsection
21(1)(b) stipulated that 'aboriginal natives of Australia' could
not qualify for an Invalid Pension. As introduced, the Bill
excluded 'Asiatics or aboriginal natives of Australia, Africa, the
islands of the Pacific, or New Zealand.' Mr Batchelor moved an
amendment to remove the whole clause. He argued that it was only
necessary to exclude those who were not born or naturalised British
subjects. He said:

[i]n perhaps ninety-nine cases out of a hundred
it would be absurd to give pensions to Aboriginals, but we have
some aboriginals who are farmers, who cultivate their land and live
precisely as Europeans do ... [T]hey should not be debarred, on the
grounds that they are aboriginals, from receiving an old-age
pension ... [W]e ought not debar a man from receiving pensions
simply because he is an aboriginal.(31)

Most of the debate was concerned with the
exclusion of 'Asiatics' and the aboriginal natives of other
countries. In relation to that point Mr Batchelor argued: 'if we
naturalise them and call upon them to bear taxation exactly as we
do every other member of the community-we should not refuse them a
pension'.(32)

It was argued that some long-term residents who
had qualified for a state pension would now not be eligible. The
Government, however, did not want to concede ground and the only
concession made was to remove the exclusion of those 'Asiatics'
born in Australia.

In 1912 Parliament passed the Maternity
Allowance Act to provide for the payment of an allowance to
women living in Australia upon the birth of a child. Under
subsection 6(2) the allowance was not to be paid to '[w]omen who
are Asiatics, or are aboriginal natives of Australia, Papua, or the
Islands of the Pacific'. Senator Walker (Free Trade, NSW)
unsuccessfully attempted to amend the exclusionary clause. His
concern was the meaning of the word 'Asiatic' and wished to ensure
that women of European descent who were born in Asia were not
excluded. The debate highlighted problems of inconsistency which
arose out of laws which use 'racial' categories to define
entitlement or rights. It was noted by Senator J. Vardon (Free
Trade-Liberal, SA) and Senator T. D. Chataway (Free Trade, Qld)
that a white woman married to a black man would be entitled to
receive the benefit, but a black wife of a white man would not. The
Government assumed that the inconsistency could not be
avoided.(33) There was no objection to the exclusion of
Aborigines and no discussion of Aborigines except a passing
reference to the fact that under the clause the daughters of a
white father and a 'half caste' Aboriginal woman would be entitled
to the benefit but their mother would not.(34)

The Defence Act 1910 exempted from
service in time of war '[p]ersons who [were] not substantially of
European origin or descent, of which the medical authorities
appointed under the regulations shall be the judges ...' In other
circumstances the exemption from compulsory military service might
have been seen as beneficial treatment. However, although there was
no mention of Aborigines in the Parliamentary Debate, there was no
reason to see the exemption as being underpinned by anything other
than the same ideology which gave rise to the other
exclusions.(35) The Act did not prevent Aborigines
enlisting and in the First World War a number served with
distinction in non-segregated units.(36)

Parliamentarians may have anticipated that the
application of these laws would be a relatively straightforward
matter. The reality was that it was anything but straightforward.
Laws that classified people on the basis of 'race', did not, and
could not, provide clear cut objective criteria. It was always
difficult to maintain consistency in administrative practice, and
to interpret the law in a way which was not open to attack for
inconsistency and contradiction. As with the Apartheid laws in
South Africa and the White Australia Policy, administrators were
always confronted with problems of interpretation in relation to
people who did not fit neatly in the racial categories established
by the law. For the people administering the laws there was a
concern that their interpretation of the law in cases which were
not clear-cut might establish a precedent which would make it more
difficult to 'hold the line'.

To fully appreciate the complexities and
contradictions involved in the administration of these 'racially'
excluding laws it is necessary to understand the meaning that was
placed on the expression 'aboriginal native' as it applied to
people from outside Australia, as well as to the Indigenous peoples
of Australia. The term 'aboriginal', was taken to mean being of the
'race' of original inhabitants of a country, whereas 'native' meant
being born in the country. Much could be said about the reasoning
behind this understanding of the terms but for the purposes of
understanding the effect of the legislation, an 'aboriginal native'
of a country was taken to be a person who was both born in the
country and was of the original 'racial' group of the country.
Thus, that legislation which excluded 'aboriginal natives of Asia'
did not apply to Australian-born children of Asians, whereas that
legislation which excluded Asians-such as the Maternity
Allowance Act 1912-continued to apply to second and subsequent
generations of people from Asia. The effect was that while the
Australian-born children of, say, 'aboriginal natives of Asia' were
not excluded from the Commonwealth franchise, the exclusion
continued to apply to Aborigines, or to be more precise, to 'all
persons in whom the aboriginal blood
preponderates'.(37)

The full impact of the law was a complex
administrative jigsaw in which people of Asian or African
background could be naturalised and still be denied a range of
normal rights and benefits, and their Australian born children
could have a different set of rights.

The legal status of Indigenous peoples was
equally problematic and inconsistent. Individuals could be
Aborigines for some purposes and not others. In the administration
of the Franchise Act it was decreed that 'half-castes' were not
'aboriginal natives'. Secretary to the Attorney-General's
Department, Robert Garran, advised that 'half-castes' were not
disqualified from voting 'but that all people in whom the
aboriginal blood preponderates are disqualified'. By 'blood', he
noted, he meant 'ancestry'.(38)

In 1901 the Attorney-General, Hon. Alfred
Deakin, had expressed a similar opinion. He stated that in relation
to s. 127:

half-castes are not 'aboriginal natives' within
the meaning of this section, and should be included in reckoning
the population'.(39)

However, in relation to the term 'white labour'
in the Excise Tariff Act 1902 Deakin wrote that:

half-castes are on the borderline; but in view
of the affirmative and restrictive language of the provision, I
think that half-castes should be excluded.(40)

As more laws using 'racial' categories came into
operation the position became more confused and irrational and the
legal status of Aborigines was made even more complex by the
operation of State laws. State and Territory laws, which became
more restrictive and discriminatory over the first half of the
century, subjected Indigenous peoples to a wide range of
restrictions. In some cases these laws applied to people with
any Aboriginal antecedents.(41) Individuals who
were subject to the restrictions and legal disabilities under State
laws could at the same time be required to comply with Commonwealth
legislation under which they were regarded as non-Aboriginal.
Chesterman and Galligan give the example of 'half-castes' who under
a State law were regarded as Aborigines and were denied a whole
range of legal rights but, at the same time, were subject to
conscription under the National Registration Act
1939.(42)

In the debate on the first Commonwealth
Franchise Bill great attention was paid to how s. 41 of the
Constitution might affect the voting rights of Aborigines. Senator
O'Connor, speaking for the Government in the Senate, appears to
have believed s. 41 only applied until the Commonwealth Parliament
legislated under s. 9 and s. 30 for the Commonwealth franchise.
(43)Senator Playford agreed and argued that the words
'or acquires' in s. 41 referred to those who acquired the vote
in a State between the proclamation of the Constitution Act of the
British Parliament and the enactment of the franchise law by the
Commonwealth Parliament. Once the Commonwealth Parliament had
legislated, s. 109 would give precedence to Commonwealth
law.(44) On this interpretation, s. 41 provided no
constitutional protection because the Commonwealth Parliament would
be able to legislate for a uniform franchise which was more limited
than that in a State.

In the House of Representatives the Hon. Sir
William Lyne (Minister for Home Affairs) spoke for the Government.
Along with a number of others he interpreted s. 41 to mean that it
'prohibited the taking away of an existing electoral right in a
State'.(45) In the words of Mr Higgins, s. 41 only
compelled the Parliament to 'keep alive existing electoral
rights'.(46)

Senator Mathieson and others argued that s. 41
guaranteed the Commonwealth franchise to anyone who at any time in
the future obtained a State franchise.(47) According to
this view the words 'or acquires' meant acquires at any time in the
future. Some speakers who accepted this interpretation were alarmed
at the implication that an Act of a State Parliament could have the
effect of extending the Commonwealth franchise.

Despite the disagreements about its meaning and
effect on the operation of the legislation, the reference to s. 41
remained in the Commonwealth Franchise Act, and the problem of
interpreting it was passed to the electoral officials who
administered the Act and compiled the electoral rolls. An
influential reference in this matter was Quick and Garran's
Annotated Constitution of the Australian
Commonwealth.(48) When electoral officials, and
other Commonwealth Departments, sought advice on the meaning of s.
41 Robert Garran, as Secretary to the Attorney-General's
Department, put forward the position taken in the Annotated
Constitution.(49)

Quick and Garran saw three possible
interpretations of the rights conferred by s. 41. First, that a
right could be acquired at any time in the future if State law
extended the franchise. Second, that the right could be acquired at
any time in the future by people who were eligible under a State
law which had been in existence before the Commonwealth Parliament
determined the Commonwealth franchise. Thirdly, 'that the right
must be acquired by the [person] concerned before the Federal
franchise was fixed'.(50) Although they thought that the
matter was not beyond argument they preferred the third and most
restrictive interpretation-that is that s. 41 only protected the
right to vote in Commonwealth elections of those
individuals who actually had the right to vote in a State
election before the Commonwealth Parliament determined the
franchise for Commonwealth elections.

Quick and Garran noted that a point against
their interpretation was that in the Convention Debates the main
advocate of the inclusion of s. 41, Mr F. W. Holder from South
Australia, sought to ensure that women in South
Australia-presumably not just the individual women who were already
enrolled for State elections-were not disenfranchised in
Commonwealth elections. This pointed to the second possible
interpretation, which would have ensured not only that the federal
franchise could not be taken away from women in general in the two
States where they already had the vote, but also would have
preserved the rights of all Aborigines in South Australia and that
class of Indigenous peoples who had met the restrictive franchise
requirements in other States.

The narrowest interpretation of s. 41, favoured
by Quick and Garran, would only have given Commonwealth voting
rights to individual Aborigines who had already exercised
their rights in State elections prior to the Commonwealth
Parliament legislation on the Commonwealth franchise. As it turned
out, in the administration of the franchise legislation, no
Aboriginal rights were protected. In a detailed study of the
electoral rolls and the administrative practices of Commonwealth
electoral officers, Pat Stretton and Christine Finnimore show how
Aborigines were systematically denied their rights. On any pretext,
for example a change of address, Aborigines who had exercised their
State voting rights since before 1901 were removed from the
Commonwealth rolls. Stretton and Finnimore conclude that many of
the removals were simply illegal.(51) Neither the
interpretation by officials of s. 41 in relation to Aborigines, nor
the administrative removal of Aborigines from the electoral rolls,
were challenged in the courts. Nor, despite the fact that it was
confronted with issues relating to the voting rights of other
groups, were the administrative practices which denied Aborigines
the vote raised in the Parliament until the
1940s.(52)

In 1923, however, there was a challenge in the
High Court by a Japanese-born British subject, Jiro Muramats, whose
application for enrolment for Commonwealth elections had been
refused by electoral officials, even though he was enrolled for
Western Australian elections.(53) Muramats lost the case
on account of a technicality in the Western Australian legislation
which denied him a vote even though his name was on the electoral
roll. The importance of the case, however, was that Justice
Higgins' judgement contained an opinion on the meaning of s. 41
which ran counter to the administrative orthodoxy. Justice Higgins
held that but for the technicality in the Western Australian law
Muramats:

... right to vote at elections for the [Western
Australian] assembly, and therefore to be enrolled on the
Commonwealth roll, would seem to be clear.(54)

In 1924 a magistrate in Melbourne upheld an
appeal by an Indian-born British subject, Mitta Bullosh, whose
application for enrolment had been rejected by the Commonwealth
Electoral Office. The magistrate was influenced in his decision by
the Higgins' interpretation of s. 41.(55) The
Commonwealth Electoral Officer in Victoria believed that, if the
decision stood, he would be obliged to accept applications for
enrolment by those 'Aboriginal natives' of Australia, Asia, Africa
and the Pacific Islands who were entitled to vote in State
elections, and thereby significantly extend the
franchise.(56) Initial plans by the Commonwealth
Government to appeal against the magistrate's decision were
abandoned in the face of increasing pressure to comply with
previous undertakings made at Imperial Conferences, and to the
Indian Government, to remove discrimination against Indians who
were British subjects and were resident in
Australia.(57) Instead the Government introduced
legislation which dealt in the narrowest possible way with the
dilemma caused by the decision in the Mitta Bullosh case.
Legislation was introduced to make all Indians who were British
subjects in Australia eligible to vote.

The object of the Bill, the Minister explained,
was 'to remove the existing disqualification on racial grounds from
adult natives of British India who are inhabitants of the
Commonwealth'.(58) The Parliament was reassured that the
total numbers involved were small (approximately 2300 in the whole
Commonwealth) and would decrease as British Indians could no longer
obtain permanent entry. The measure had bipartisan support. The
several Senators who spoke argued that it was a just measure which
would help dispel misconceptions in India about Australia's
policies and, noting that there would be no relaxation of the White
Australia Policy and that the Bill only applied to those Indians
already domicile in Australia, expressed
support.(59)

The introduction of this legislation had
presented the Parliament with an opportunity to examine all the
exclusions in the franchise legislation, but it did the reverse. In
the entire debate on the Electoral Bill 1925 there was not a single
reference to the 'aboriginal natives of Australia', who were, and
remained, excluded by exactly the same clause in the Act which had
denied Indians Commonwealth voting rights.(60) Nor,
despite the interest shown in the meaning and effect of s. 41
during the debate on the franchise in the First Parliament, was
there any discussion of it in 1925. On both sides of the Parliament
there was an eagerness to deal quickly with the internationally
embarrassing matter of discrimination against British Subjects
without questions about the rights of other groups being
raised.

Under s. 122 of the Constitution the
Commonwealth Parliament can 'make laws for the government of any
territory'. Thus, in 1911 when the Northern Territory was
transferred to the Commonwealth from South Australia, the
Commonwealth Parliament obtained undivided law-making power over
the Territory.

The Commonwealth Parliament obtained this full
legislative power at an important time. Aborigines were the
majority population in the Territory and many still lived in a
frontier situation on cattle stations or in more remote areas
beyond the frontier where there had been very little contact
between Aborigines and Europeans. It was open to the Commonwealth
Parliament to attempt to regulate the dispossession of Aborigines
from their land and to bring some enlightenment to the
administration of the 'colonial situation' in the Northern
Territory.(61) With the lessons of what had happened in
each of the British colonies in Australia it might have been
possible for the Commonwealth Parliament, with full law-making
power, to seek better outcomes for Aborigines than had been
achieved in any of the States. However, given the attitudes which
had already been expressed in the Parliament about Aboriginal
Affairs it is not surprising that the question of Aboriginal rights
in the Northern Territory was not raised in the debate on the
Northern Territory Bills. As Yarwood and Knowling observe, there
appeared to be no 'awareness that the Commonwealth was embarking on
an important responsibility, in the exercise of which the world
might measure, some day, its humanity and
generosity.'(62)

From the outset members of the Parliament
indicated a preparedness to 'turn their backs' on the Northern
Territory. The provisions in The Northern Territory
(Administration) Act 1910 for the administration of the
Territory were brief and were dealt with briefly by the Parliament.
The Act established the position of Administrator for the
Territory, who was responsible to the Minister for External
Affairs; the Commonwealth Parliament's legislative power in
relation to the Territory were delegated to the executive branch.
In essence the Parliament handed its new legislative powers to the
Government. Section 13(1) stated:

until the Parliament makes other provision for
the government of the Territory, the Governor General may make
Ordinances having the force of law in the Territory.

Although the Act required the tabling of the
Ordinances in both Houses, and provided for their disallowance by
either House, it is a notable feature of the Parliament's attitude
to the governance of the Northern Territory that it so readily
delegated its legislative power.(63) Normal Commonwealth
laws operated in the Territory in the same way as elsewhere in
Australia and Commonwealth Departments continued to operate
directly in the Territory, but in relation to those matters which
would otherwise be State matters, the Commonwealth governed through
an Administrator.(64)

The legislation transferring responsibility for
the Northern Territory from South Australia, the Northern Territory
Acceptance Bill 1910, was given much closer attention. Almost the
entire debate was concerned with the cost to the Commonwealth. The
legislation ratified an agreement which had been made between the
Commonwealth and South Australia, which included commitment to
complete the railway line from South Australia to Darwin. More than
anything in the Bill the matter of the railway line took up the
Parliament's time.(65)

Amongst all the words spent on the proposed
railway line one matter-the value of pastoral leases and the
profitability of the cattle industry-did indirectly foreshadow
issues which were to be central to race relations in the Territory.
Senator R. J. Sayers (Free Trade-Liberal, Qld) observed that leases
on 'enormous estates' of thousands of square miles, with up to 42
years to run, would 'be made very valuable by the construction of a
railway at the expense of the Commonwealth.'(66) For
reasons unrelated to the railway (which ninety-nine years on still
had not been built) the value of the land was to become a matter of
continuing importance. The value of the 'enormous estates' did
depend on the running costs of cattle stations, and for the next 50
to 60 years the question of the cost of Aboriginal labour was
central to race relations in the Territory and was one issue
relating to the Territory with which the Parliament did concern
itself.

One provision of the Bill which attracted the
attention of Parliamentarians proved to be more important than
could have been anticipated. Under the heading Disposal of
Crown Lands, s. 11 of the Act required that:

[n]o Crown Lands in the Territory shall be sold
or disposed of for any estate of freehold, except in pursuance of
some contract entered into before the commencement of this Act.

Opposition members, resigned to the fact that
they did not have sufficient votes in either chamber to defeat it,
spoke briefly against the measure, arguing that it would discourage
immigrants settling in the Territory and would 'stand in the way of
improvements being made'.(67) The question of type of
land ownership continued to be a divisive issue and ultimately,
with the Mabo and Wik decisions in the 1990s, became a matter which
very directly affected indigenous rights to land.

The Northern Territory (Administration)
Act1910 gave the Territory no representation in the
Commonwealth Parliament. Before its transfer to the Commonwealth
the Northern Territory had had representation in the South
Australian Parliament. Section 122 of the Constitution allowed the
Parliament to grant representation to the Territory in either house
but it was not until 1922 that the Territory gained representation
and then only on a limited basis.(68) Even with one
representative the Northern Territory was marginal to the party
contest of the Parliament. Unless an issue in the Territory touched
the broader Australian community, or affected important economic
interests, it was unlikely to get much attention in the
Commonwealth Parliament.

The South Australian law governing Aboriginal
Affairs in the Northern Territory, the Northern Territory
Aboriginals Act1910 (SA), which was in place when
the Commonwealth took control was protectionist and segregationist
and denied Aborigines the most basic legal rights. Modelled on the
Queensland Aboriginals Protection and Restriction of the Sale
of Opium Act 1897 it was in line with laws which had been
enacted in all the mainland States. Accounts of deprivation and
economic exploitation and abuse of Aborigines in remote areas had
led to public pressure for the adoption of protectionist measures
which, whatever the motives of the proponents, took the form of
segregationist laws, making Aborigines an institutionalised and
administered people subject to the direction and control of
officials.

The first Ordinance relating to Aborigines made
under Commonwealth control of the Northern Territory, the
Aboriginal Ordinance 1911, and the Regulations made under
it, contained very similar provisions. On its face the Ordinance
was designed to protect Aborigines from exploitation. The
employment of Aborigines was subject to the control of a Protector
or Sub-Protector and Europeans could be prohibited from entering
Aboriginal camps and under subsection 6 (1) there was power to
remove Aborigines where:

any Protector or police officer [had] reason to
believe that any aboriginal or half-caste [was] not being properly
treated.

However, whatever 'protection' was achieved it
also entailed the denial of rights. Aborigines were placed under
the direction of the Protector. Aborigines could be excluded from
designated areas and the Protector was given power to have
Aborigines taken into custody. The Ordinance also gave to the
Protector the powers that were used in the removal of
part-Aboriginal children from their parents. The Protector was made
the legal guardian of every Aboriginal and part-Aboriginal child
under the age of 18, and under s. 3(1) of the Act was:

entitled at any time to undertake the care,
custody, or control of any aboriginal or half-caste if in his
opinion, it [was] necessary or desirable in the interest of the
aboriginal or half-caste for him to do so.

In 1918 a new comprehensive Aboriginal Ordinance
intensified the existing law's protectionist and discriminatory
provisions. The definition of 'Aborigine' included 'aboriginal
natives of Australia and of the adjacent islands', and depending on
their circumstances and gender, some 'half-castes'. 'Half-castes'
living as the spouse of an Aborigine, and 'half-castes' who
associated and lived with Aborigines were included in the
definition. All male 'half-castes' under the age of 18, and female
'half-castes' who were 'not legally married to a person who [was]
substantially of European origin or descent' were defined as
Aboriginal.

The Protector was given extraordinary powers and
Aborigines were subject to extraordinary restrictions. Aborigines,
as defined by the Ordinance, could be directed to live on Reserves
unless employed. The Protector (and police) could arrest Aborigines
without a warrant for breach of an Ordinance and could order
Aborigines to move from one reserve to another or to move their
camp. Aborigines were prohibited from entering hotels and locations
could be declared prohibited areas.

Under the Regulations made in 1919 Aborigines
who worked and lived in towns could not be 'at large' one hour
after sunset without written permission. The penalty for a breach
of the regulation was one month imprisonment.(69)
Missions could be declared Aboriginal institutions for children and
became important instruments for separating children with lighter
coloured skin from their parents. The Ordinance put children sent
to institutions under the control of the superintendent.

The Ordinance contained provisions which were
rationalised in terms of the need to protect Aboriginal women, but
they also reflected an official concern about the growth of the
part-Aboriginal population. The effect of the 'protective' measures
was to even further lower the status of Aboriginal women. It was an
offence for non-Aborigines to 'habitually consort' with or keep an
Aboriginal or 'half-caste' mistress or to have carnal knowledge of
Aboriginal or 'half-caste' women. An Aboriginal women needed
permission to marry a non-Aboriginal man.

The official position saw 'caste' or 'breed' or
'strain' as being a measure of, or determinant of, competence.
Ordinances became more complex and convoluted as rules and
regulations increasingly classified people, and their rights,
entitlements and obligations in terms of their racial mix.

In the name of greater protection, subsequent
amendments to the Aboriginal Ordinance increased the regulation and
control of Aborigines. Over the next two decades officials were
vested with more and more discretionary power over a wider and
wider range of people. In line with developments across Australia
Commonwealth policy in the Northern Territory aimed to separate and
absorb the children with light coloured skin.(70)

Another legal change in the Northern Territory,
which was also in line with developments in the States, was the
adoption of a system of exemptions. The Aboriginal Ordinance
1936 allowed Chief Protectors to conditionally exempt
part-Aborigines from the provisions of the Ordinance. The system of
exemptions was presented as a progressive measure which was aimed
at Aboriginal progress and advancement. However, the ideology
behind the system-its paternalism and cultural arrogance-and the
bureaucratic and overbearing way in which exemptions were
administered were deeply resented by Aborigines.(71)
Although an exemption could release an individual from the
restrictions of the Act or the Ordinances and the control of
officials, it could also drive a wedge into communities or even
families (see below). In later years the importance of the
exemptions extended beyond the fact that an individual could be
freed from the restrictions and controls of the Ordinance. Exempted
Aborigines became entitled to a range of other Commonwealth
benefits which would otherwise have been denied to them as an
'Aborigine' as defined by the Ordinance.

The parliamentary record shows that the
discriminatory Ordinances were accepted by the Parliament largely
without complaint. There were, however, two matters which did
provoke Parliamentary challenges to Northern Territory Ordinances;
firstly, the terms under which land could be held in the Northern
Territory, and secondly any suggestion that a minimum wage for
Aborigines would be set by regulation, or that the Protector would
acquire the capacity to regulate employers effectively.

Throughout 1911 and 1912 the Opposition attacked
the Fisher Labor Government over its policy of making land
available in the Territory only as leasehold. Opposition members
argued that only freehold title would provide the security which
would be necessary to induce settlers to take up residence in the
Territory.

In August 1912 the Opposition moved in the
Senate and the House of Representatives to disallow the Crown
Lands Ordinance 1912 which set the terms for the leasing of
Crown land in the Territory. Since the Act under which the
Ordinance was made-the Northern Territory (Administration) Act
1910-prohibited the disposal of Crown land as freehold title
it was not possible for the Opposition to achieve its ultimate
objective by having the Ordinance disallowed. Nevertheless the
Opposition argued that only short-term leases should be allowed as
a temporary measure until it was possible, through a change in the
legislation, to dispose of Crown land to freehold
title.(72)

As with the two Northern Territory Acts, in the
course of a very lengthy debate on the Crown Land Ordinance and on
land settlement in the Northern Territory, there was almost no
mention of Aboriginal rights or of the future place of Aborigines
in the Territory. However, the outcome of the debate was ultimately
to be of great significance for Aboriginal rights in the Northern
Territory. The existing Pastoral Leases in the Northern Territory
had been made under South Australian law which explicitly preserved
Aboriginal rights to enter pastoral leases and hunt and gather and
take surface water. In the debate on the Crown Land Ordinance the
Opposition attacked many aspects of the terms under which the
leases would be held. There were objections to the powers of the
Director of Lands, the 'reservations, covenants conditions and
provisions' which could be placed on a lease, and the provision for
periodic review of the rent. The preservation of certain Aboriginal
rights, however, was not taken up directly.

Although the question of the terms of
landholding continued to be raised periodically the step of
converting leasehold to freehold was never taken.(73)
There were a number of subsequent amendments to the Crown Land
Ordinance but none of these removed the rights of Aborigines to
'enter and be on the leased land; take water; take or kill animals
for food or ceremonial purposes; and take vegetable matter growing
naturally'.(74)

This reservation of Aboriginal rights had very
important implications following the Mabo(75) decision
in 1992 in which the High Court found that, contrary to previous
legal decisions, native title to land had existed in Australia
prior to European settlement, that it had survived the acquisition
of sovereignty by the Crown and that although it was extinguished
by deliberate acts of the Crown, such as the sale of a freehold
title, where land had not been 'alienated' Indigenous peoples might
still be able to claim some right to the land. This raised the
possibility that some Aboriginal rights had been preserved on
pastoral leases. In the Wik(76) decision in 1996 the
High Court found that 'the granting of a pastoral lease ... did not
necessarily extinguish all native title rights,
and interests that might otherwise
exist.'(77)

At the time of the debate on the Crown Land
Ordinance 1912 in the Commonwealth Parliament the accepted
orthodoxy was that under Australian law Aborigines had no right to
claim land on the basis of rights arising from prior occupation. To
the extent that such rights were even contemplated it was supposed
that Aboriginal rights would be accommodated through the creation
of Aboriginal Reserves.

Throughout the 1920s there were press reports of
Aboriginal deprivation in the North, and the Government came under
pressure from humanitarians and Christian groups to improve the lot
of Aborigines. There was extensive press coverage of a massacre of
Aborigines in the north of Western Australia in 1926, and the
subsequent investigations, and acquittal of two policemen charged
with murder.(78) Humanitarian groups became more
insistent in calling for reforms and for action by the Commonwealth
Government. Eventually the cause was taken up, in a bi-partisan
way, in the Parliament. In October 1927 Mr D. S. Jackson
(Nationalist, Bass, Tas) called for the establishment of a Joint
Select Committee to report on Aboriginal welfare. He moved (in
part):

that in view of the fast increasing death rate
among the aboriginal tribes in Australia, and the urgent need for
their protection against disease and other effects brought about by
the populating of areas which for centuries have been their hunting
grounds a joint select committee be appointed to inquire into-

(a) the segregation in large areas in the
Northern Territory of its present aboriginal population,

(b) co-operation with States in matters
affecting the welfare of aboriginal tribes,

(c) the half-caste problem,

(d) allocation of assistance to Aboriginal
Mission Stations, and

(e) any other matters which will assist the
welfare of aboriginals and half-castes.(79)

Mr Jackson described the 'pitiful' condition of
Aborigines in institutions in the Northern Territory. Aborigines,
he warned, would become a 'vanishing' people, like Indigenous
peoples elsewhere in the world, unless action was taken. He
said,

[p]robably the world will not remember very much
of the speeches of honourable members in this Parliament; but it
will remember what we do here, and how we treated our
aboriginals.(80)

The motion was supported by Mr N. J. O. Makin
(ALP, Hindmarsh, SA) who urged that consideration be given to the
views of the Aborigines Protection Society of South Australia:

the Australian aboriginal is the rightful owner
of this country ... Protection should be granted to him against any
harm that might come to him from association with white men. The
Aborigines Protection League urges that an area be set aside for
our aboriginals, and that a model State should be created and
governed by an administrator, the aboriginal himself having some
voice in its government.(81)

The proposal, he said, was not for total
segregation. 'It would certainly be wrong to compel them to occupy
certain areas'. However, in outback Australia, where Aboriginal
well-being was so threatened by the appropriation of their hunting
ground and water springs and by mistreatment it would be
desirable:

to constitute these people [into] a community of
their own, and encourage them to develop along their own
lines.(82)

The Nationalist Government of Stanley Bruce
(1923-1929) resisted the establishment of a Joint Select Committee.
Its preferred position had been to establish a Royal Commission
into Aboriginal Affairs in all States and Territories but the
States had not been willing to co-operate. The Minister for the
Home and Territories, the Hon. C. W. C. Marr, urged the Parliament
not to dwell on the wrongs of the past which, he said, could be
detrimental to Australia's interest overseas.

[T]o review the past ... would be to unjustly
misrepresent the conditions that obtain today. If we were to
broadcast to the world that nearly 100 years ago the aborigines
were treated in a dastardly way-and admittedly they were-we should
do injury to our White Australia policy; whereas we wish to
convince the world that we are as mindful of our black brethren as
of the whites.(83)

However, the Government was also under pressure
from outside the Parliament. Various deputations had urged reforms
on the Government. The Minister had received a letter from the
Anti-Slavery and Aborigines Protection Society of London and a
deputation had called on the High Commission in London. The
Aborigines Protection Society of South Australia and the
Association for the Protection of Native People of the Commonwealth
lobbied the Government, and a Petition from 7113 people, seeking
the creation of a 'model Aboriginal state' was presented to
Parliament.(84)

In December 1927 the Prime Minister announced
that rather than agreeing to the establishment of a Joint Select
Committee or a Royal Commission, the Government would hold an
inquiry into the conditions of Aborigines and 'half-castes' in the
Northern Territory.(85) The Chief Protector of
Aboriginals in Queensland, J. W. Bleakley was
commissioned to conduct the enquiries. Bleakley was concerned to
improve the material well-being of Aborigines and their prospects,
but his Report on the Aboriginal and Half-Castes of Central and
North Australia(86) was very much a document of its
time. Bleakley accepted the paternalistic and protectionist
policies of the day and advocated the continued separation of
'half-caste' children from their parents. There are many things
that could be said about the Report but the point of interest here
is the account to the Parliament of living and work conditions in
the Territory.(87)

Bleakley noted that the cattle industry in the
Northern Territory was totally dependent on Aboriginal labour.
Equally, Aborigines who had been deprived of their traditional mode
of survival were forced to seek station employment. Employers were
required to be licensed and to provide the most minimal conditions
and facilities. In some areas where labour was in short supply
employers paid a cash salary above the minimum and some employers
provided reasonable conditions. However in many cases even the
absolutely minimal conditions were not enforced and were not met.
Aboriginal workers lived in camps on the cattle stations.

[B]y the payment of a licence fee of
10[shillings] per annum, the employer is entitled to employ an
unlimited number of aboriginals without payment, on condition that
those employed are clothed and fed, and reasonable shelter is
provided for them. The licence stipulates that any permanently
employed shall be paid a wage of 5[shillings] per week ... As
employers on pastoral holdings have claimed that many more natives
have to be fed than are employed by them, the payment of wages has
not been insisted upon, at any rate in North Australia.

In relation to living conditions Bleakley
reported that, '[a]lthough it is one of the conditions of
employment that reasonable shelter be provided for all natives
employed, at very few places inspected was there found any evidence
of a real attempt to fulfil these conditions'.(88)

In many places workers had to make shelter for
themselves from waste material which 'usually, for lack of material
... were mere kennels and most unsanitary'.(89) No
education was provided and Bleakley noted the opposition of some
employers who believed that 'education spoils them, making them
cunning and cheeky'.(90)

A few employers, Bleakley observed:

with a humane recognition of some measure of
obligation to relieve the old natives of the camp, who have been
deprived of their natural means of subsistence by the usurpation of
their tribal hunting grounds, and the employment of their food
winners, supply the old people with rations.

Usually, however, this was not the case and 'as
a result of the semi-starvation that often exists' young women in
the camps were forced into prostitution.(91)

Bleakley made a large number of recommendations,
most of which were in accord with the paternalistic framework and
the racial stereotypes of the day. Among them, however, were a
number of recommendations relating to the adoption of Regulations
to enforce minimum wages, a fixed scale of wages for permanent
workers and better living conditions. This caused great alarm in
the Northern Territory cattle industry which opposed fixed wages,
however minimal.

At the same time that the Bleakley Report was
being finalised, another event in Central Australia put further
pressure on the Government already under pressure in relation to
Aboriginal Affairs.

In August 1928, in the vicinity of Coniston
Station, 160 miles north-west of Alice Springs, a party led by
police, was assembled to seek out Aborigines who had killed a white
station hand.(92) There had been growing tension between
Aborigines and Europeans in the vicinity. As pastoral expansion and
drought put pressure on Aboriginal food and water supplies there
had been threats against Europeans and some spearing of cattle and
goats. In August-September the party killed at least
31 Aborigines. When the news made its way to the Department of
Home Affairs, and the Australian and overseas press, the Government
was inundated with representations from humanitarian, church and
missionary, and Aboriginal protection societies seeking a broad
independent inquiry.(93) Under pressure, the Government
established a Board of Enquiry to be chaired by A. H. O'Kelly, a
Police Magistrate from Queensland, with two other members-P. A.
Giles, a Police Inspector from Oodnadatta in South Australia, and
J. C. Cawood, the Police Commissioner for Central Australia.

The Board was to inquire into whether the
shooting of the Aborigines was justified and:

[w]hether on the part of the settlers in the
districts concerned, or in any other direction, any provocation has
been given which could reasonably account for the depredations by
the aborigines and their attacks on white men in Central Australia.
If not, what, in the opinion of the tribunal, were the reasons for
the aborigines' actions.(94)

In less than three weeks, having interviewed
thirty witnesses (all but one of whom were Europeans), the Board
submitted its Report. The Board was, it said, 'prepared to believe
the evidence of all witnesses', and concluded that the shootings
had been justified. Further, it found that:

[no] provocation had been given which could
reasonably account for the depredations by the Aboriginals and
their attacks on white men in Central Australia.

On the reasons for the Aborigines' actions the
Board concluded:

(a) the advance of the Walmalla tribe on a
marauding expedition from the border of Western Australia into the
Coniston country-the tribe had intentioned to wipe out the settlers
and working boys, as the evidence shows,

(b) unattached Missionaries wandering from place
to place, having no previous knowledge of blacks and their customs
and preaching a doctrine of equality,

(c) inexperienced white settlers making free
with the natives and treating them as equals,

(j) escaped prisoners from Darwin not being
rearrested-wandering about in their native country and causing
unrest and preaching revolt against the whites.(95)

Hartwig has made a detailed analysis of the
findings in relation to the Proceedings of the Enquiry, and other
accounts and facts that were not collected by the Board. He argues
that many of the conclusions of the Board are inconsistent and are
contradicted by the evidence. The various justifications for the
killings-self-defence, to prevent escape, and the
'unfortunately-drastic-action-had-to-be-taken' explanation-were
garbled and contradictory.(96) No evidence was taken
from the relatives of those who were shot or other Aborigines.
Accounts from the other side, and other evidence pointed to quite
different conclusions. A number of the Board's findings in relation
to the reasons for Aboriginal attacks were simply ridiculous. There
was no 'Walmalla tribe', the only woman missionary in Central
Australia was stationed in a quite different area and there was no
evidence of 'unattached missionaries' operating in the area or of
the presence of escaped prisoners from Darwin.

Many of these matters were taken up with the
Government by humanitarian and mission organisations who argued
that the hastily written Report looked like a 'white-wash'
undertaken by a Board which was far from impartial. There were no
truly independent members representing outside organisations, and
the Aborigines had no legal representation. In the time that it
took to write the Report the Board could not possibly have examined
the matter carefully. It was unreasonable to believe that in the
circumstances the killing of at least 31 Aborigines (with none
wounded) had been justified.(97)

Although many newspapers accepted the Board's
Report without criticism there were persistent complaints from
Aboriginal protection and church organisations. Continuing reports
of the condition of Aborigines in the Territory made it difficult
for the Government to ignore the public demands for action.
However, it appears that whatever damage the Coniston incident
could do to the Government's standing, it was more worried about
the recommendations of the Bleakley Report on wages and working
conditions in the cattle industry. Along with the cattle industry
the Government opposed the implementation of Bleakley's
recommendations on minimum wages and conditions but now faced
growing public pressure over Aboriginal conditions and mistreatment
of Aborigines in the Territory.

The Government chose to conflate the issues
raised in the two reports and to defuse the issue by holding a
conference of a wide range of interested parties. The Findings
of the Board of Enquiry were tabled in the Parliament on 7
February 1929, and the Bleakley Report the next day, and the
Minister for Home Affairs, the Hon. C. L. A. Abbott, announced that
a meeting of all interested parties would be held in April. The
participants included departmental officials, representatives of
the cattle industry, mission and church societies from around
Australia, Aboriginal rights protection societies, women's
organisations, and anthropological societies.(98)

What is remarkable about these events is that in
the Parliament there was absolutely no discussion of either Report
after they had been tabled. The Findings and Evidence of the
Board of Inquiry were ordered to 'lie on the Table', and
although a copy was made available to the Association for the
Protection of Native Races, it was never
printed.(99)

For the remainder of the Government's term there
was no debate in the Parliament on either the Bleakley Report or
the Findings of the Board of Inquiry. The Government had felt under
sufficient public pressure to consult with a wide range of
community organisations but in the Parliament nothing was said.

The public reaction was such that subsequent
Governments were careful to try and ensure that such incidents did
not happen again. When, in August 1933, it was reported that a
'show of force' was planned against Aborigines at Caledon Bay and
Woodah Island area in eastern Arnhem Land the public reaction
forced the Government to hold back and immediately to deny that any
punitive expedition was contemplated.

The incident in the Caledon Bay and Woodah
Island area arose out of the killing of police Constable McColl who
at the time had been a member of a police party investigating the
killing of five Japanese trepanger fishermen by Aborigines. Again,
despite the public attention and press coverage, there was almost
no discussion of it in the Parliament. With the exception of a
question by E. J. Ward (ALP, East Sydney, NSW) in the House of
Representatives-who asked:

will the Minister for the Interior withdraw the
punitive expedition which has been sent out against the harmless
and defenceless blacks of North Australia.

-the discussion related to the need to protect
white settlers.(100)

Debate in the Parliament on the matter then
centred on accusations by H. G. Nelson (ALP, NT) against meddlesome
missionaries and the Association for the Protection of Native
Races. Nelson called for stronger action by a better equipped and
stronger force of police against 'atrocities by
aborigines'.(101) The Minister for the Interior (Hon. J.
A. Perkins) defended the government's restraint:

the [Member for the Northern Territory] has said
that the policy of the Government in respect of native affairs in
the Northern Territory has been weak. [A]fter Constable McColl was
murdered recently ... the government thought of sending an
expedition of about 25 men into the area concerned to apprehend the
murderers; but there was straight away a cry throughout Australia,
in the press and elsewhere, against such a policy. The expedition
was immediately branded as a punitive expedition ... It seems
certain that had police visited those areas at the time bloodshed
would have occurred, and this was what everybody desired to
avoid.(102)

Although the 'show of force' had been called
off, the events which followed were very revealing about the
administration of law and justice in the Northern Territory. The
suspects were persuaded-by missionaries who acted as go-betweens-to
give themselves up and go to Darwin on the understanding that they
would receive a fair trial.(103) Those accused of
killing the Japanese were found guilty at a trial in the Northern
Territory Supreme Court conducted by Judge Wells and sentenced to
20 years imprisonment. The same month, Tuckiar, the Aboriginal
man accused of killing Constable McColl-a European-was tried by the
same Judge. In an extremely flawed trial, where Tuckiar was
incompetently defended, he was found guilty and sentenced to death.
There were many reasons for community outrage-most obviously there
was the harsher sentencing when the victim was a European. There
were also reports of extremely prejudicial statements by the Judge.
It was reported that in the previous case Judge Wills had said of
the Aboriginal prisoners, '[p]ossibly the best and kindest thing to
do to them is to hang them'.(104)

Tuckiar's conviction was quashed in the High
Court.(105) The Court held that there were flaws in the
conduct of the trial; that the Judge had misdirected the jury, that
evidence had been admitted improperly and that the advocate for
Tuckiar had not properly discharged his duty to his client.

The Court also made damning observations about
the whole system of justice as it related to Aborigines in the
Northern Territory. Mr Justice Starke said:

it is manifest that the trial of the prisoner
was attended with grave difficulties, and indeed was almost
impossible. He lived under the protection of the law in force in
Australia, but had no conception of its standards. Yet by that law
he had to be tried. He understood little or nothing of the
proceedings or of their consequences to him ...(106)

Chief Protector of Aboriginals for the Northern
Territory informs us that 'the conditions of interpreting the
statements of aboriginals through other aboriginals, especially
during the formal proceedings of the Court, make it difficult and
almost impossible to get more than an approximation of the
truth'.(107)

These and subsequent events raised questions
about the whole operation of the justice system for which the
Commonwealth Government was responsible. Similar questions, about
how the law might be applied in such circumstances, and about how
the system might be changed to make greater allowance for cultural
difference, had been raised at protest meetings and in submissions
to the Government. (108)Surprisingly, however, in the
Parliament these matters were not pursued.

The Coniston massacre may have signalled the end
of the old ways in relation to punitive expeditions(109)
but there was one other glaring matter which came out of the two
Reports which had been tabled in the Parliament in February 1929:
the condition of Aboriginal workers in the Northern Territory
cattle industry. The Bleakley Report had exposed terrible
conditions and great abuses in the cattle industry.

Aboriginal wages and conditions of employment in
the cattle industry, however, were matters on which there was
determined opposition to reform. The author C. D. Rowley
observed that:

labour relations constituted the 'neuralgic
point' of inter-racial contacts, and of relations between
government, economic, and mission interests.(110)

The Scullin Labor Government, which was elected
on 12 October 1929, held only seven of the 36 places in the Senate.
Even the most minimal reforms proposed for the Territory by the
Scullin Government were opposed in the Senate.

In March 1931 Senator Sir Hal Colebatch
(Nationalist, WA) successfully moved to disallow Ordinances because
regulations made under them set minimum standards of housing of
workers on pastoral properties in the Northern Territory which he
said would:

part of a policy by which the Government appears
determined to hamper to the greatest possible extent those persons
who, in the face of the greatest difficulties, are endeavouring to
develop industries in the northern portion of the
continent.(111)

the purpose behind the regulations was to give
power to the Australian Workers Union.(112)

Government Senators argued that the Ordinance
and regulation did no more than require 'decent accommodation' but,
with only seven Senators, were not able to prevent the
disallowance.(113)

Opposition Senators' determination at this time
to prevent any further regulation of Aboriginal employment affected
their attitude to other questions. At face value the Northern
Territory (Administration) Bill 1930, had nothing to do with
Aboriginal matters, but in the debate in the Senate the question of
Aboriginal wages and conditions in the cattle industry was never
far below the surface. The Bill provided for some limited
self-government in the Territory through an elected Advisory
Council with the power to make non-financial Ordinances, subject to
the approval of the Commonwealth Cabinet, and the power of
disallowance by either House of the Parliament.(114) The
measure was opposed by Nationalist Senators who argued that it
involved an unnecessary cost, but also that it was likely to result
in the election of Australian Workers Union officials by the
'loafers' and 'wild lawless men' of Darwin.(115) As
elected members of the Advisory Council, it was argued, union
organisers would be able to travel the Territory at the taxpayers'
expense, and the ordinance-making power would be used to increase
Aboriginal wages to serve the ultimate goal of the
Union.(116)

Throughout the debate on the Northern Territory
(Administration) Bill Opposition Senators attacked a Regulation
which had been made under the Aboriginals Ordinance to increase the
wages of Aboriginal drovers.(117) One exchange between
Government and Opposition Senators is instructive about attitudes
to Aboriginal labour:

Senator GREENE (Nationalist, New South Wales).-I
cannot understand why the Government should desire to sacrifice the
remnants of the cattle industry in this way.

Senator BARNES (ALP, Victoria, Assistant
Minister).-The honourable senator knows that aborigines have been
employed without pay when white men should have been employed and
paid wages.

Senator GREENE.-It is clear that the Government
wants to force the lessees in the Northern Territory to employ
white men instead of aborigines. It has deliberately set itself to
kill what remains of the cattle industry.

Senator BARNES.-The industry should not remain
if it cannot employ white men.(118)

Throughout the 1920s and 1930s there was
continuing pressure from organisations outside the Parliament for
reform in Aboriginal Affairs. There were, in the late 1920s, in
Australia at least thirty different organisations concerned with
Aboriginal welfare.(119) The activities of these
humanitarian and church organisations were given impetus by the
development of anthropological studies in Australia. Revelations in
the Bleakley Report about living conditions in the North, and other
accounts from the outback-the Coniston killings and the trial of
Tuckiar, and a massacre of Aborigines in the Kimberleys in
1926-added to the pressure for change. Also, Australia was coming
under increasing international pressure in relation to the
treatment of Indigenous peoples.(120)

Also at this time, in response to increasingly
restrictive legislation in the States, and worsening conditions on
Aboriginal reserves, a number of Aboriginal political organisations
formed.(121) These included the Australian Aboriginal
Progressive Association and the Aborigines Progressive Association
in New South Wales, the Native Union in Western Australia and the
Australian Aborigines' League in Victoria. Amongst the more
prominent Aboriginal leaders and campaigners were Joe Anderson,
William Cooper, William Ferguson, Pearl Gibbs, Fred Maynard and
John Patten. The operation of these organisations was severely
handicapped by the use of the restrictive laws by officials to
intimidate Aboriginal supporters and isolate Aboriginal activists.
Although, with minor exceptions, the membership of these
organisations was exclusively Aboriginal they did obtain support
from white groups and individuals-in some cases from unions and
left-wing groups and also in the case of the Aborigines Progressive
Association, from right-wing nationalists.(122)

The specific concerns of these organisations
included the forced removal of Aboriginal children from their
families, the dispossession of Reserve land, the authoritarian
management and poor conditions on Reserves, the exclusion of
Aboriginal children from the normal education system and the denial
of social welfare benefits to Aborigines.

While there was not unanimity amongst all
Aboriginal groups or their leaders about policies for the long-term
advancement of Aborigines, the overwhelming concern was the removal
of the legal discrimination based on 'race'. Some Aboriginal
leaders advocated special measures such as Aboriginal
representation in the Commonwealth Parliament, and supported the
creation of inviolable reserves to protect 'primitive' Aborigines
from white intrusions and to varying degrees the objectives of the
organisations emphasised the importance of maintaining Aboriginal
traditions and culture. However, the main thrust of the political
activity was the achievement of legal equality with whites for all
Aborigines and the repeal of the system of laws which denied rights
and entitlements on the basis of 'race'.(123)

In a large number of letters, publications and
speeches Aboriginal leaders campaigned against the widely held view
which saw 'development' or 'degree of civilisation' or capacity of
an individual in terms of the degree of European ancestry, and
against the legislation based on that belief. The organisations
adopted a number of tactics to publicise their cause and to attract
public support. William Cooper organised a petition to the King in
the mid-1930s.(124) In 1937 Aboriginal activists were
successful in publicising particularly oppressive actions of the
NSW Protection Board and the extremely harsh conditions which some
Aborigines had been subjected to in NSW. In November that year a
NSW Parliamentary Select Committee on the Aborigines' Protection
Board was established. Despite evidence of great abuses under the
Board's administration, the work of the Committee faded out, and it
made no report.(125)

On Australia Day 1938 the Aborigines Progressive
Association organised a conference of Aborigines in Sydney as part
of a Day of Mourning as a protest against the celebrations being
conducted for the sesqui-centenary of British settlement in New
South Wales. Speakers at the Conference called for 'full
citizenship rights' and full entitlement to social security
benefits for Aborigines who lived a 'civilised' lifestyle, the
repeal of oppressive 'protectionist' laws, an improvement of
conditions on Reserves, an end to the removal of Aboriginal
children from their families and full access to education for
Aboriginal children. The Conference passed a resolution:

[w]e, representing the Aborigines of Australia
... on the 26th day of January, 1938, this being the 150th
Anniversary of the white man's seizure of our country, hereby make
protest against the callous treatment of our people by the white
men during the past 150 years, and we appeal to the Australian
Nation of today to make new laws for the education and care of
Aborigines, and we ask for a new policy which will raise our people
to full citizen status and equality within the
community.(126)

Following the Day of Mourning, on 31 January
1938, a deputation of 20 Aborigines met the Prime Minister, Joseph
Lyons, and the recently appointed Minister for the Interior, John
McEwen. The delegation requested an urgent financial grant to the
States to help relieve the very poor conditions of Aborigines on
reserves. They also called for Commonwealth control of Aboriginal
affairs, and urged the Prime Minister to adopt a long range policy
of '[raising] all Aborigines throughout the Commonwealth to full
Citizenship Status and civil equality with whites' including
equality in educational opportunity, employment, workers
compensation and insurance, pensions, ownership of property and
control of personal finances. The delegation also urged the
implementation of a land-grant scheme similar to that available to
soldier-settlers and immigrants, for those Aborigines who wanted to
settle on the land.(127)

One very small step had been taken towards a
change in policy when, in April 1937 the first Commonwealth-State
Authorities Conference on Aboriginal Welfare adopted a statement of
objectives:

this conference believes that the destiny of the
natives of Aboriginal origin, but not of the full-blood, lies in
their ultimate absorption by the people of the Commonwealth and it
therefore recommends that all efforts be directed to that
end.(128)

This Conference has been seen as something of a
watershed in Aboriginal Affairs because although many of the
officials attending believed that 'absorption' meant the
disappearance of part-Aborigines through intermarriage and still
assumed that 'full-bloods' would die out,(129) it was a
first step in the abandonment of the discriminatory, segregationist
and protectionist policies that were being pursued by all
governments in Australia.

There was no discussion in the Parliament of the
new policy or of the representations from Aborigines to the
Government. There was, however, in 1938 one debate in the House of
Representatives which raised the matter of Indigenous rights. In
June 1938 the Lyons UAP-Coalition Government introduced the
National Health and Pension Insurance Bill which was intended to
established a compulsory insurance scheme for the payment of old
age, invalid and disablement pensions to be funded from
contributions by employers, employees and consolidated revenue. The
Bill excluded 'aboriginal natives of Australia [and] the islands of
the Pacific'. C. A. S. Hawker (UAP, SA) moved an amendment to
remove the exclusion of Aborigines. He argued that it was unjust to
'exclude Australian aborigines regardless of the conditions under
which they may live or of what educational qualifications they may
have attained.' He gave examples of Aborigines he knew who
participated in the workforce who were excluded from Commonwealth
entitlements simply because of their 'race'. One example, he said,
was a man:

in whom the aboriginal blood predominates, who
is in charge of livestock, water improvements, and other valuable
property ... Under the State law, that man is entitled to vote-the
State law does recognize him as a human being-but under the federal
law, as it stands today, he would not be entitled to an invalid or
old-age pension, nor will he be eligible to insure under this bill.
That state of affairs constitutes a grave injustice
...(130)

The sentiment expressed by Hawker, that 'the
total exclusion of aborigines, just because they are aborigines be
removed from the ... bill' was supported by a number of members
from both sides of the house and the Government immediately agreed
to remove the exclusion of Aborigines and Pacific
Islanders.(131)

The legislation was passed but it did not mark
any great change in social policy in relation to Indigenous
peoples. With the threat of approaching war the whole
scheme was abandoned.(132) An interesting feature of the
debate is that, even though there was use of old stereotypes, for
the first time there appeared to be a rough consensus in the
Parliament that rights and entitlements of citizens should not be
based on 'race'. In the post-War period there was a gradual shift
of social policy in that direction but it was at least three
decades before all legislation which granted one group of people
less rights 'just because they were aborigines' was repealed.

The shift in the stated objectives of Government
was taken further in February 1939 by the Minister for the
Interior, the Hon. John McEwen (Country Party, Indi, Vic.), in a
Statement, 'The Northern Territory of Australia: Commonwealth
Government's Policy with Respect to
Aboriginals'.(133)

McEwen's 'New Deal' contained two divergent
elements. For those 'detribalised Aborigines' living in
'unsatisfactory conditions' the objective would be to find them a
place in European society. For those Aborigines 'still living in
tribal state', however, the policy, for the present, would be to
leave them 'to their ancient tribal life protected by Ordinances
from the intrusion of whites and maintaining the policy of
preventing any exploitation of the resources of the
reserve'.(134)

These two elements in the Statement reflected
two quite different visions of the future of Aborigines. The
competing schools of thought were represented by two
anthropologists, both of whom had sought to influence Government
policy. In the Statement McEwen said that the Government had
'closely studied' the reports of Dr Donald Thomson who in 1935-36
and 1936-37, after lengthy fieldwork, had reported to the
Commonwealth Parliament on conditions in Arnhem Land and
recommended sweeping policy changes which were aimed at protecting
'tribal' Aboriginal society against the destructive effects of
white intrusion.(135) Thomson was representative of a
school of thought which saw segregation, at least until it was
demonstrated that proven methods of absorbing Aborigines into white
society had been developed, as the only way of saving Aborigines
from degradation and alienation from both cultures. He argued
that:

the remnant of native tribes in Federal
Territory not yet disorganised or detribalized by prolonged contact
with alien culture be absolutely segregated, and that it be the
policy of the Government to preserve intact their social
organization, their social and political institutions, and their
culture in its entirety.(136)

On the other hand McEwen had been advised by A.
P. Elkin, Professor of Anthropology at Sydney University, who was a
strong advocate of assimilationist policies and legal equality for
Aborigines. Elkin believed that it was not possible to successfully
segregate Aborigines from white society. Aborigines would
inevitably be drawn to European goods and the only way to prevent
the degradation and destruction of Aboriginal people, which had
characterised previous contacts between the two cultures, was to
provide the positive measures-training and education-which would
direct the cultural change in a way which would enable Aborigines
to deal successfully with European ways.(137)

Despite that element in the policy relating to
the protection of Aborigines 'living in a tribal state' the
Statement was seen, by both Elkin and his critics, as a victory for
the assimilationists. In the Statement McEwen had rejected what he
said was a policy of merely reacting to problems. Instead, he said,
the Commonwealth would work towards a final objective of Aboriginal
people:

raising ... their status so as to entitle them
by right and by qualification to the ordinary rights of citizenship
and enable them and help them to share ... the opportunities that
are available in their own native land.(138)

The initiatives which might have come out of the
McEwen policy were held back by the Second World War. The impetus
for reform in Indigenous affairs which had come from the political
activities of humanitarian groups-and was manifest in initiatives
like the Initial Conference of Commonwealth and State Authorities
on Aboriginal Welfare, and the McEwen Statement-was lost. Other
matters became more urgent. Paul Hasluck observed that in almost
all the popular literature written during the war about post-war
reconstruction there is almost no mention of Aboriginal
welfare.(139)

In the broader context, however, the War can be
seen as a turning point in Aboriginal Affairs. Within Australia the
impact of the War accelerated social changes and helped alter old
attitudes, and in the post-war period from outside the country
there was growing pressure on Australia in relation to its
treatment of 'native people'. In some cases the war had a very
direct impact on Aborigines' lives and on their relations with
white Australians. With labour shortages an increasing number of
Indigenous peoples moved off reserves and missions and into
employment in towns and cities. In the Northern Territory the Army
provided an alternative source of employment. By many accounts
relations between Aboriginal workers and members of the armed
forces were generally good.(140) Aborigines employed as
workers in Army camps were paid in cash plus rations and
accommodation. In contrast with the employment on many pastoral
properties the rations provided a good diet, the accommodation and
ablution facilities were adequate and the cash salary was actually
paid.

Official military policy in relation to
Indigenous peoples, as members of the armed forces, reflects less
well on the services than did their treatment of Aboriginal workers
in the Northern Territory. The Defence Act exempted persons 'not
substantially of European origin or descent' from compulsory
training and call up for war service, but as British Subjects
Aborigines were not barred from enlisting.

During the first few months of the war a number
of Aborigines did enlist. The Military Board, however, was
concerned about the consequences of white soldiers having to take
orders from Aboriginal NCOs, and without any legislative authority,
adopted a policy of rejecting further Aboriginal volunteers. In
response to protests a slightly relaxed but arbitrary policy of
accepting part-Aboriginal volunteers who had citizenship rights
under State law was adopted. The actual recruitment was quite
inconsistent; Aborigines with identical backgrounds to serving
soldiers were turned away.(141)

Some Aboriginal organisations hoped that the
enlistment of Aborigines would lead to full citizenship rights. The
Australian Aborigines' League on the other hand thought that the
rights should come first. In a letter to the Minister for the
Interior the League said that most Aborigines had:

no status, no rights and no land ... and nothing
to fight for but the privilege of defending the land which was
taken from him ... [T]he enlistment of natives should be preceded
by the removal of all disabilities.(142)

With the entry of Japan into the war recruitment
became more urgent and more Indigenous peoples were taken into the
armed forces. In the North of Australia segregated Aboriginal and
Torres Strait Islander units were formed. In these units (again
without any legislative basis) Indigenous soldiers were paid about
one third the amount paid to equivalent white soldiers and had less
favourable leave and recreation entitlements and as NCOs had no
authority over white soldiers.(143)

Aborigines served in many capacities. As in the
First World War, Indigenous peoples who did enlist in the Second
AIF served with distinction in Europe and the Pacific. In the
North, Indigenous peoples played a role in the construction of
airstrips, security patrols, reconnaissance, air-sea rescue,
coastal patrols and coast watch.(144) Despite this
significant contribution to the war effort, in many cases with less
reward and less to gain than white Australians, at the end of the
war there was little public recognition or change of heart by
officials who administered the laws which regulated Aborigines'
lives.

One immediate, if unintended, consequence for
Aboriginal rights was the extension of Commonwealth voting rights
in 1943 to all military personnel serving overseas for the duration
of the war and for six months after the end of hostilities.
Aborigines who had served in regular units were also entitled to
Returned Soldier benefits. Some State laws were also amended to
extend more rights to Aborigines in the services. However, these
pressures for reform that came out of the experiences of the Second
World War and its aftermath did not produce an immediate response
from the Commonwealth Government or the Parliament.

Neither the Chifley Labor Government, nor the
Menzies Liberal-Country Party Government which succeeded it, gave
Aboriginal Affairs a high priority. In 1944 the Labor Government
had unsuccessfully sought a constitutional change through
referendum to expand Commonwealth Parliament's law making powers
over a number of matters, including 'the people of the Aboriginal
race', for a period of five years after the end of the war. In the
debate on the Constitution Alteration (Post-war Reconstruction)
Bill the Attorney-General and Minister for External Affairs,
H.V. Evatt, said that:

[f]ew would deny that the care and welfare of
the Australian aborigine should, in principle, be a national
responsibility.

He saw the proposed amendment as simply
correcting an anomaly in s. 51(xxvi).(145)

There was no other debate on that section of the
Bill and so it is not clear how the Government planned to use that
power, or what any other Parliamentarians might have had in mind.
There appeared to be general acceptance by the Parliament that
discriminatory provisions in Commonwealth laws should be wound back
but there was no push for a comprehensive program which would have
required an extension of Commonwealth powers.

Although it did not appear to have any program
to advance Aboriginal welfare the Labor Government did make some
very limited changes to social security laws. The Child
Endowment Act 1941 had extended entitlement to Aborigines who
were not nomadic or dependent on government benefits. In 1942 the
Labor Government, on the recommendation of the Joint Committee on
Social Security, legislated to extend the entitlement for old-age
and invalid pensions to 'aboriginal natives of Australia' who were
'exempt' under State or Territory Laws. In the case of States which
did not have exemption provisions, the pension could be paid if the
Director General was satisfied that 'by reason of the character and
the standard of development of the native, it [was] desirable that
the pension should be granted'.(146)

Similar changes were made in the Maternity
Allowance Act 1942 and the Widows' Pension Act 1942
allowed a lesser amount to be paid to an Aborigine if it was
thought desirable, or for the pension to be paid to a third party.
Under the Unemployment and Sickness Benefits Act 1944 the
benefits were available to Aborigines if the Director General
believed that 'by reason of the character, standard of intelligence
and development' it was reasonable that the benefits should be
paid.

In 1947 the Social Services Consolidation
Act brought all these laws together and provided for the very
qualified or discretionary entitlements of the sort which were
available to Aborigines under the existing laws. In the debate on
the Bill Mr Blain (Independent, NT) who was supported by Mrs D. A.
Blackburn (Independent Labor, Bourke, Vic.) expressed concern about
the definition of 'aboriginal native' and the uncertain nature of
the entitlement. He asked:

who is to be the qualified person who will
nominate an aboriginal native as being qualified to receive an
unemployment benefit or a sickness benefit.

He was concerned that the decision about
entitlement would be made on the basis of whether a person was
'slightly coloured' or a 'pure-blood native'. All Aborigines who
had been 'driven out' of their land, or who were 'being assimilated
into the white population', he said:

whether [they] be black or brindle ... has every
right to receive the same treatment as is accorded to white
people.(147)

The Commonwealth Franchise and Electoral Acts
had been amended a number of times in the first four decades of the
Parliament, but the exclusion of 'aboriginal natives of Australia'
remained.(148) In 1941 the issue of the voting rights of
Indigenous peoples was again raised by Mr M. M. Blackburn (ALP,
Bourke, Vic.) who attacked the Electoral Offices' use of the narrow
interpretation of s. 41. He complained that Aborigines who had the
vote in some States had been:

struck off the rolls because the Commonwealth
Electoral Office acts on the opinion expressed by Quick and
Garran.(149)

A minimal concession was made to Aborigines in
1943 on account of a provision which gave the vote to all members
of the defence forces during the war and for six months after the
end of the war. In 1946 T. W. White (Liberal, Balaclava, Vic.)
observed that:

... aborigines, although educated, entitled to
exercise a vote at State elections, and liable for municipal taxes,
are not eligible at Commonwealth elections.

He asked, in the light of s. 41 of the
Constitution, how it was that Aborigines who were entitled to vote
at State elections could be denied the Commonwealth franchise. He
urged the Government to remedy the situation.(150) The
Minister's reply was encouraging(151) but it was not
until 1949, in response to a concerted campaign on Aboriginal
voting rights, that the Commonwealth franchise was extended to all
Aborigines who were entitled to vote under State Legislation as
well as any Aborigine who had served in the
forces.(152)

However, there were not any sweeping changes and
no reform in the area where it might have been expected that a
Labor Government and Labor members would have felt the greatest
obligation to act-Aboriginal wages and conditions of employment in
the Northern Territory.(153) In answer to a question in
1945 the Prime Minister, J. B. Chifley, said that the
policy for the welfare of Aborigines in the Northern Territory was
'satisfactory' although because of the war it had not been possible
'to implement that policy to the extent
desired'.(154)

The Menzies Liberal-Country Party Government
which came to office in December 1949 was no more enthusiastic
about reform in Aboriginal welfare than its predecessor. However,
there were growing pressures both outside and inside the
Parliament. In the immediate post-war period there was elected to
the House of Representatives a handful of members on both sides who
forcefully took up the question of Aboriginal welfare and rights.
On the Liberal side P. M. C. Hasluck (Curtin, WA) and W. C.
Wentworth (Mackellar, NSW) were elected in 1949. On the Labor side
K. E. Beazley (Fremantle, WA) was elected in a by-election in 1945
and G. M. Bryant (Wills, Vic.) in 1955.

A speech by Hasluck, as a new backbencher from
the Government party, in 1950 is seen to have had a significant
impact. He moved:

[T]hat this House is of the opinion that the
Commonwealth Government, exercising a national responsibility for
the welfare of the whole Australian people, should cooperate with
the State Governments in measures for the social advancement as
well as the protection of people of the aboriginal race throughout
the Australian mainland, such cooperation to include additional
financial aid to those States on whom the burden of native
administration falls most heavily; and the House requests the
Government to prepare proposals for submission at the earliest
opportunity to a meeting of State Premiers and, in preparing such
proposals, to pay due regard to the principles of (a) State
administration of native affairs and (b) cooperation with the
Christian missions.(155)

Hasluck proposed an assimilationist policy. He
argued that the days when segregation was acceptable were past and
that:

the nation must move to a new era in which the
social advancement rather than the crude protection of the native
should be the objective ...

It was necessary, he said, to work towards the
advancement of Aborigines within white Australia's society and
economy. Because the problem was one for the whole community, and
because the Commonwealth 'is the custodian of the national
reputation in the world at large' there was a special obligation on
the Commonwealth to take the lead:

When we enter into international discussions,
and raise our voice ... in defence of human rights and the
protection of human welfare, our very words are mocked by the
thousands of degraded and depressed people who crouch on the
rubbish heaps throughout the whole of this continent. Let us
cleanse this stain from our forehead or we run the risk that
ill-intentioned people will point to it with scorn. When we have
done that we will be able to stand with greater pride and more self
confidence before the world as a self-respecting nation.

Notwithstanding the limits on its constitutional
powers, Hasluck said, the Commonwealth needed to create cooperative
programs in which the cost would not be disproportionately borne by
the States which happened to have the largest Aboriginal
population.(156)

The motion was supported by T. V. Gilmore
(Country Party, Leichhardt, Qld) and Mr Beazley. The Minister
for the Interior, P. A. M. McBride, said that he was sympathetic to
the sentiments expressed by the speakers, and acknowledged the need
for cooperation, but pointed to the complexity of the social
problem that faced the nation.(157) In his own account
Hasluck claimed that the Minister was supportive of his
efforts(158) but it does appear that the Government did
not really welcome the action of the new backbencher. The motion
was not given any priority; it was not debated further and lapsed
on the dissolution of the Parliament in June 1951. When the Liberal
Government was returned, however, Hasluck was made Minister for the
newly created Ministry of Territories, and held that position for
twelve years.

In October 1951 Hasluck made a statement of
policy to the House of Representatives and reported on the outcome
of a Native Welfare Conference of Commonwealth and State officials
which had met in September 1951. In his statement to the Parliament
Hasluck put a detailed argument for the abandonment of the past
segregationist policies. First, he said, segregationist measures
were not possible:

[C]ontact between the natives and the white
people has now gone so far that in no part of the country are we
dealing with a virgin problem, and more than two-thirds of the
natives are either de-tribalised or well on the way to losing their
tribal live. In spite of the creation of large reserves ... in the
North and Central Australia, contact with the remaining one-third
is bound to increase ... Even if we wished to place the remnant of
tribal natives in some sort of anthropological zoo in the isolated
corners of the continent, it is extremely doubtful whether we could
arrest the curiosity that is daily extending their knowledge of
white ways.

Second, he argued that 'the blessings of
civilization [were] worth having'-cultural adaptation would bring
health and other benefits to Aborigines. On the matter of cultural
change he said:

[a]ssimilation means not the suppression of the
aboriginal culture but rather that, for generation after
generation, cultural adjustment will take place. The native people
will grow into the society in which, by force of history they are
bound to live.

Thirdly, Hasluck said, there was a large number
of Aborigines who were '... already losing grip on their tribal
life or [had] lost it altogether ...' who would be:

... left spiritually as well as materially
dispossessed unless something satisfying is put in the place of
their tribal custom.(159)

The alternative to segregation Hasluck said was
a policy which accepted the inevitability of Aborigines losing
their old way of life and the desirability therefore of instituting
measures which would provide the opportunity for Aborigines to take
a full place in the broader Australian community. Under this
policy, he told Parliament:

in the course of time, it is expected that all
persons of aboriginal blood or mixed blood in Australia will live
as do white Australians.(160)

Speakers from the Labor Party supported the
policy statement. L. C. Haylen (ALP, Parkes, NSW) said that in
relation to the Native Welfare Conference the Minister' ... has
certainly done a remarkably good job' and endorsed the
recommendations.(161) Other speakers for the ALP, though
critical of the Government for not going far enough fast enough,
supported the assimilation policy spelt out by the
Minister.(162)

In August 1952 Hasluck gave a further
explanation of the assimilation policy-spelling out the objective
of removing restrictions and extending the rights of Aborigines. In
that statement he announced his intention of amending Northern
Territory Ordinances to remove special provisions which applied
only to Aborigines on account of their 'race' and to allow for the
resumption of Aboriginal Reserve land which was no longer
needed.(163) The Ministerial Statement was followed by a
wide ranging parliamentary debate on Aboriginal policy in which
there was general acceptance by speakers from both sides of the
proposal to move to a policy of assimilation through the repeal of
restrictions and the extention of full citizenship rights to
Aborigines.

The policy of assimilation became an entrenched
orthodoxy which had the support of all Australian governments. The
1961 Conference of State and Federal Ministers of Aboriginal
Affairs agreed that:

The policy of assimilation means, in the view of
all Australian governments, that all Aborigines and part-Aborigines
are expected eventually to attain the same manner
of living as other Australians and to live as members of a single
Australian community enjoying the same rights and privileges,
accepting the same responsibilities, observing the same customs
and influenced by the same beliefs, hopes and loyalties as
other Australians.(164)

There was at this stage no important partisan
division within the Parliament on the policy of 'assimilation for
all Aborigines'. Hasluck believed that the goals he had as Minister
for Territories were broadly supported by the Opposition. In his
own account of his time as Minister, Hasluck makes much of the
unity of purpose which existed, not only between the Government and
Opposition but also between the Commonwealth and State
Governments.(165) However, as it became the
uncompromising official goal of governments, the objective of
assimilation came to be increasingly criticised by Aboriginal
activists, academics and commentators outside the Parliament and
some State politicians. At one level the critics were concerned
about the objective itself(166) and from the 1970s this
question, of the ultimate objective of Indigenous policy, became a
central issue in the debate on Indigenous Affairs in the
Commonwealth Parliament. In the 1950s and 1960s, however, the
debate focused on the implementation of the policy. Critics argued
that the same old methods of the past-institutionalisation and
regulation of Aboriginal life-had not changed, and despite the
rhetoric about 'same rights' the discriminatory legislation had not
been repealed.

Much of this criticism was directed at the
protectionist State laws which institutionalised Aborigines, and
subjected them to administrative control. The idea that the
Commonwealth needed to take the lead was frequently raised in the
Parliament. Hasluck had expressed it in terms of the need to bring
the States into co-operative programs with the Commonwealth to
advance the welfare of Aborigines. However, the Commonwealth
Parliament itself was extremely slow to act in removing
discriminatory provisions in its own laws. While it was not behind
all the State Parliaments in legislating to grant full citizenship
rights to Aborigines it was slower than some.(167)

Throughout the 1950s the Commonwealth Government
was confronted with tireless lobbying and campaigns by groups
outside Parliament-Aboriginal activists, church groups, Aboriginal
advancement associations-to extend full rights and benefits to
Aborigines.(168) It was not until 1961 that the
Parliament dealt decisively with the Aboriginal franchise. In April
1961, on a motion of the Minister of the Interior, the House of
Representatives established a seven person Select Committee on
Voting Rights for Aborigines. The Committee travelled extensively
through all States and the Northern Territory and interviewed a
wide range of witnesses. It recommended that voting rights be
extended to all Aborigines and Torres Strait Islanders. However,
'for the time being' enrolment for Indigenous peoples should not be
compulsory. For those who were enrolled, however, voting should be
compulsory. The Committee argued that compulsory enrolment for
Aborigines could result in injustice for the:

many aborigines still in the tribal state, ...
or not completely integrated into the Australian
community.(169)

In 1984 the electoral law was amended to remove
any distinctions between Indigenous peoples and other citizens.

In the case of Commonwealth benefits the winding
back of exclusionary provisions was also slow. In 1959 the Social
Services Act was amended to exclude only those Aborigines who were
'... in the opinion of the Director General, nomadic or
primitive'(170) Introducing the Bill, the Minister for
Social Services, Hon. H. S. Robertson, said:

this is an occasion of great historic importance
both nationally and internationally. For more than 50 years
successive Commonwealth governments have been called upon to
defend-or to remove-the traditional discrimination levelled against
the aboriginal natives of our country who ... were unable to
qualify for social service benefits in the normal way ... [T]he
legislation I now bring down to the House is to sweep away the
provisions that place restrictions on Aboriginal natives in
qualifying for social service benefits, except where they are
nomadic or primitive ...

We are aware that in some quarters there have
been apprehensions lest benefit payments may not only be misused
but may, in addition, be used in a way that would in fact
deteriorate the conditions of some natives ... Where the Department
is satisfied that a native's social development is such that he can
with advantage handle the pension himself then the payment will be
made to him direct. In other cases some or all of the pension
payable in respect of the native will be paid to the mission, to a
state or other authority, or to some other person for the welfare
of the native. But no restrictions will be imposed that are not
common, under similar circumstances, to all sections of the
Australian community.(171)

In the very lengthy debate on the whole Bill the
provisions relating to Aborigines were not discussed.

In 1966, introducing the Social Services Bill
the Minister for Social Services, the Hon. Ian Sinclair
(Country Party, New England, NSW), said the legislation would:

... remove all references in the Act to
'Aboriginal natives of Australia'.(172)

The Bill was passed with almost no discussion of
this significant milestone.

In the Northern Territory, where the
Commonwealth had a free hand to pursue the policy of assimilation,
the developments continued to parallel those in the States. The
laws which institutionalised people and subjected them to
administrative control were only very slowly dismantled. In
addition, other events in the Territory arising directly from the
Commonwealth's handling of Indigenous Affairs highlighted the
deprived condition of Aborigines in Australia and fuelled growing
concern in the broader electorate about Aboriginal welfare. As much
as anything that happened in the States it was events in the
Northern Territory which attracted international attention and
became the focus of Australia-wide political activity about
Indigenous rights and welfare.

As part of the new assimilation policy Hasluck
announced to the Parliament in August 1952 that the Government was
taking two steps in relation to Aboriginal Affairs in the Northern
Territory. The first related to the Aboriginals Ordinance and
citizenship for Aborigines. There had been growing Aboriginal
protest against the way the restrictions on Aborigines were being
enforced and the way the powers of the Director of Native Affairs
were being used.(173) Hasluck said:

[t]he present system is based on an attempt to
define the term 'aboriginal', all special legislation being made to
apply to those persons who come within the definition unless, by
application to an official, they can obtain exemption from the
special legislation. It is now proposed to abandon this old method
and to assume that, unless a person is brought under the special
legislation, it does not apply to him or her. The ground on which a
person will be brought under the legislation will not be colour, or
any other racial or genealogical reason, but the test whether he of
she stands in need of special care or
assistance.(174)

The second involved the enactment of an
Ordinance to give the Administrator of the Northern Territory the
power to allow prospecting and mining rights on Aboriginal Reserves
and to recommend the resumption or revocation of land from
Aboriginal Reserves (subject to the power of either House of the
Commonwealth Parliament to disallow the action). Hasluck said:

[a] Policy of assimilation and the measures
taken for the education and care of natives mean that less
dependence is placed on reserves as an instrument of policy than
was placed on them in the days when it was considered that the
interests of the natives could only be served by keeping them away
from white settlement. Nevertheless, ... for many generations large
reservations will still be necessary ...

On the other side of the picture, we see the
necessity for developing our national resources. At the present
time, the strongest pressure comes from the need that is seen to
extract the latent mineral wealth of the territory.

[R]eserve land which is not being used by the
natives should not be closed forever to exploration of development.
[The Government] also recognises that to-day the large reserve is a
less essential means of protecting the welfare of the natives than
it was a generation ago. At the same time, the Government is
convinced that the excision of land from reserves, or any
exploration of reserves, must be handled with great care and
gradualness in order to safeguard the interests of the natives and
that some form of compensatory benefit should be
given.(175)

In a wide ranging Parliamentary debate on
Aboriginal policy which followed the Ministerial statement,
speakers from both sides expressed general approval of the
Government's proposal. The only disquiet about the Ministerial
statement came from K. Beazley who was concerned about the
resumption of Aboriginal Reserves. He argued that:

[t]he destruction of every native people that
has been destroyed on the earth has begun with the destruction of
its rights in land ... The only way to safeguard some of the
interests of the Australian natives in the land was by a system of
reserves. While the Minister's statement on the subject of
aboriginal citizenship was very vague, his statements on the future
of those reserves was very definite. What emerges ... is that land
is to be impinged upon in the interests of the development of
minerals in the Northern Territory. We are only humbugging
ourselves if we assume that the natives will ever own any of that
land, or that they will start in an advantageous position in the
exploitation of minerals in the reserves. So the breakdown of
natives' reserves will take place very largely in the interests of
European industry.(176)

With the exception of Beazley's concern there
appeared to be general support for the adoption of a policy of
assimilation and the Government's plans for Aborigines in the
Northern Territory.

In line with Hasluck's announcement the
Aboriginals Ordinance was amended in 1953 to automatically exempt
all 'half castes' (unless the Director deemed them to be
Aborigines). Also in 1953 two new Ordinances-the Welfare
Ordinance and the Wards Employment Ordinance-were enacted
(though they did not come into operation until 1957). The Welfare
Ordinance was said to represent a move away from racially based
legislation. It replaced the Aboriginal Ordinance but was drafted
to be 'colour blind'. Instead of making reference to Aborigines,
under the Welfare Ordinance the Administrator could declare a
person to be a ward if the person by reason of-

(a) his manner of living,

(b) his inability ... without assistance,
adequately to manage his own affairs,

(c) his standard of social habit and behaviour,
and

(d) his personal associations,

stands in need of such special care or
assistance as is provided for by this Ordinance.

The Director of Welfare was to promote the
welfare, health and wellbeing of wards. The Director was also given
extraordinary powers over wards. For most purposes the Ordinance
made the Director the guardian of the ward 'as if that ward were an
infant and the Director were the guardian of that infant'
(subsection 24(1)) and he held the property of wards in trust. A
ward could be taken into custody, kept within an institution or
reserve or shifted from one reserve to another, if it were thought
to be in the ward's interest.

A ward ceased to be a ward if they married a
person who was not a ward but a ward needed the permission of the
Director to marry a non-ward. Also it was an offence for a person
to 'habitually live with a ward unless he [was] a ward or a
relation of the ward'. The Director could order a ward not to live
with another ward, and males were, amongst other things, not
permitted to:

between the hours of sunset and sunrise, be in
the company of a female ward to whom he [was] not married, except
with lawful excuse.

It was an offence to sell to, or buy from, a
ward an item worth more than ten pounds, and it was an offence to
buy from a ward a painting or drawing done by a ward without the
written consent of the Director.(177)

There were also provisions which gave the
Director power to protect wards from ill-treatment. Indeed the
whole Ordinance was rationalised in terms of the need to protect
people who could not otherwise protect themselves from exploitation
and mistreatment.(178) Whatever rationale could be
produced for the restrictions and control of wards the actual
debate on the drafting of the Bill for the Ordinance told a quite
different story.

The Northern Territory Legislative Council
objected to the Ordinance because of the unchecked powers that it
gave to officials. The Acting Crown Law Officer of the Northern
Territory at the time said 'I have read [the Bill] through again
and again and I cannot find anything in [it] to remove the
revulsion which I felt on my first reading of it'.(179)
The Bill was amended to include a prohibition against any person
who was entitled to vote in the Northern Territory and House of
Representatives elections being declared a ward. This had the
effect of ensuring that only Aborigines could be declared
wards.(180) In addition any Aborigine from interstate
who was covered by Aboriginal protection legislation was deemed to
be a ward upon entering the Northern Territory.

A reason for the delay in commencing the
operation of the Welfare Ordinance was that it took three years to
compile the Register of Wards. In 1957, 15 700 Aborigines were made
wards in a block declaration. Of the total 'full-blood' population
of the Northern Territory only about 80 were intentionally omitted
from the Register.(181)

Whatever the intentions of the Minister when he
announced his plans for the Welfare Ordinance, or of the
parliamentarians from both sides who welcomed Hasluck's
announcement, the implementation of the 'race neutral' ordinance
could be seen as nothing other than a thinly disguised version of
the old Aboriginals Ordinance with the same (or even more
restrictive) rules, prohibitions and controls, and the same
established administrative assumptions and practices.

The employment of wards was controlled by the
Wards' Employment Ordinance (1953). It contained a number
of provisions which could be seen as safeguards for Aboriginal
employees. A licence was required to employ wards, and there were
provisions for training and assistance to wards and for inspection
of work places.

In its operation, however, it appears to have
achieved little or nothing in advancing the welfare of Aborigines,
or in protecting them as employees. A number of studies concluded
that it did the reverse. In the words of Chesterman and Galligan,
it appeared that it 'served more to ensure a regular supply of
cheap labour than it did to protect wards from oppressive
employment practices'.(182) A 'prescribed wage' was set
by the Administrator but 'slow' workers could be paid at a lower
rate. One telling clause of the Ordinance made it an
offence to 'entice or persuade a ward to leave his lawful
employment'. The outcome was that under the Wards' Employment
Ordinance Aboriginal workers were paid approximately one fifth of
European wages.(183)

For the very reasons that had frequently been
stated in the Parliament and in the rhetoric surrounding the
adoption of the assimilation policy, it was no longer possible to
defend or sustain a regime of exclusion and legal discrimination
against Aborigines. The cases of particular individuals publicised
the operation of the Welfare Ordinance. One such case arose out of
the prosecution of a white drover, Mick Daly, for cohabiting with a
ward, Gladys Namagu, and subsequent attempts of the couple to
marry. The case was revealing about the nature of the restrictions
the Ordinance placed on Aborigines and the way the powers of the
Director of Welfare could be used.

On the charge of cohabiting with a ward Mick
Daly received a suspended sentence after he told the court that the
couple wished to marry. Subsequently, however, the Director of
Welfare refused his application to marry Gladys Namagu and she was
sent to an Aboriginal settlement. The couple were effectively
prevented from seeing one another. The Director of Welfare argued
that he was acting in the interest of the ward, and claiming that
Gladys Namagu was a party to traditional marriage, that he was
protecting the integrity of 'tribal marriage'. However, the way the
Director of Welfare used a range of his powers under the
Ordinance-prosecution for cohabitation, refusing a ward permission
to marry, removal of a ward to a native settlement-appeared
arbitrary and even malicious.(184) Gladys Namagu
repeatedly stated that she wished to marry Mick and the man who had
been presumed to be her 'tribal husband' repeatedly said that he
was not married to Gladys Namagu and that he had no objection to
her marrying Mick Daly.

After the case had received extensive publicity
several questions were asked in the Commonwealth
Parliament.(185) Surprisingly, however, given the media
attention it had received, neither the matter of the policy nor its
implementation were debated. In response to a 'Dorothy Dixer' about
whether the actions of the Director of Welfare were in keeping with
the policy of assimilation the Minister said that the case was not
as straightforward as was suggested by the press.(186)
Several of the speeches on the matter were very light hearted. At
no stage were any of the important issues-the rights of
individuals, the use of the powers of the Director of Welfare, the
means being used in the Northern Territory to achieve the stated
goal of assimilation-really pressed in the Parliament. Colin Hughes
says of the case:

[w]hat occurred in the House [of
Representatives] could hardly be called a zealous scrutiny of
Ministerial or public service decisions in defence of the citizen,
even of the citizen [as] ward.(187)

In contrast, the elected members of the Northern
Territory Legislative Council pursued the matter vigorously. An
attempt to have the Director of Welfare reverse his decision was
defeated by the appointed majority in the Council. However, a
motion to amend the Ordinance to include a right of appeal to a
magistrate against decisions of the Director of Welfare in relation
to the marriage of wards, was accepted by the appointed members of
the Legislative Council, and by the Federal Cabinet. Immediately
the amendment became law Mick Daly lodged an appeal. The Director
of Welfare who had previously said that he would welcome an appeal,
as it would free him to make a full statement of his case in the
appropriate place, did not contest the appeal. It would not be
possible, he said, to prove that Gladys Namagu was a ward. Whatever
the reason, the failure of the Director to press ahead with the
case removed the possibility of any public scrutiny of the basis of
his judgement in the exercise of his powers. Mick Daly and Gladys
Namagu were married 1 January 1960, six months after he was first
prosecuted for cohabitation.

The case of Gladys Namagu and Mick Daly also
illustrated the significance of the different legal status
Aborigines had in different jurisdictions across Australia and
raised questions about the Commonwealth's claim that it was leading
the States in promoting assimilationist policies and in removing
discriminatory 'race'-based legislation. Had Gladys Namagu been
able to return to her home State of Western Australia there would
have been no legal obstacle to the marriage (provided she was 21
years of age). Also, had the couple been married before they
entered the Northern Territory, the Director of Welfare would have
had no powers over Gladys Namagu as the spouse of a non-ward.

Another case which attracted widespread
criticism of the Government, and the operation of the Welfare
Ordinance, was the conviction and gaoling of the famous Aranda
artist Albert Namatjira for supplying alcohol to a
ward.(188) Because of his fame and standing and the
earnings he had made from painting he was not included in the
Register of Wards, but his family and friends were. Like the system
of exemptions which had existed under the Aboriginal Ordinance, the
Welfare Ordinance divided communities and families. Individuals who
were omitted from, or removed from, the Register of Wards, had an
entirely different set of rights and entitlements from other
members of their community and members of their family who were
wards. Namatjira, it was reported, had refused to seek an exemption
under the Aboriginal Ordinance.(189) Under the Welfare
Ordinance he was given no choice: his name was omitted from the
Register of Wards while those of his family and friends were
included.

Namatjira appealed against the conviction to the
Northern Territory Supreme Court, where the conviction was upheld
but the sentence reduced from six to three months. An Application
for Leave to Appeal was made to the High Court where it was argued
that the men to whom the alcohol had been supplied had not properly
been declared wards because their names had been placed on the
Register of Wards in a 'block' declaration in which their
individual circumstances had not been considered against the
criteria laid down in the Ordinance. The High Court refused the
Application.(190)

The prosecution of Namatjira gave extensive
publicity to the operation of the Welfare Ordinance. Namatjira was
famous in Australia and overseas.(191) There was
widespread sympathy for his plight and the dilemma he had been
placed in by the law and his circumstances.(192) There
was extensive reporting of the case and comment in the press about
the situation in the Northern Territory. On the one hand some
commentators argued that protectionist legislation of the sort
which was in place for the Northern Territory was necessary. Others
argued that discriminatory legislation which denied a range of
rights to one category of people could not be justified.

In the Parliament the Minister, Hasluck,
announced that Namatjira would be allowed to serve his sentence at
an Aboriginal Settlement rather than in the Alice Springs gaol and
the Opposition Leader, H. V. Evatt, spoke in support the
action.(193) Apart from this there was no debate about
the case in the Parliament. Despite the very active debate about
fundamental issues of Indigenous policy which took place in the
community almost nothing was said in the Parliament. On both sides
there appeared to be an unwillingness to become involved in the
debate.

The operation of the Welfare Ordinance
1953 became so discredited that in 1962 the Administrator of
the Northern Territory refused to act on the recommendation of the
Director of Welfare to add 3000 additional names to the Register of
Wards. The Ordinance lost much of its force after
Aborigines obtained the Commonwealth and the Northern Territory
franchise in 1961. The Welfare Ordinance 1953 was replaced
in 1964 with the much less restrictive Social Welfare Ordinance.
Under s. 10 of the Social Welfare Ordinance the duty of the
Director was to provide relief and assistance for people who he
determined were 'socially and economically in need of assistance'
and to 'supervise and regulate the use and management of reserves'.
The Reserves remained regulated institutions with restrictions on
entry and the wages and conditions of employment of most
'full-bloods' was still regulated under the Wards' Employment
Ordinance but many of the prohibitions which had applied to almost
all Aborigines as a consequence of being wards were
removed.(194)

From the point of view of the Government much
damage had been done. The rhetoric of assimilation and equal rights
in the Northern Territory had resulted only in extremely slow and
reluctant dismantling of the discriminatory and restrictive laws
and the actions of the Administration, which had attracted press
and public attention, had become extremely difficult to defend. In
addition the events in the Territory had become the trigger for a
new sort of Aboriginal activism. The Yirrkala community in Arnhem
Land and the Gurindji people at Wave Hill cattle station took steps
which grew from small local protests for civil rights into
protracted political campaigns for Indigenous Rights which
attracted national and international attention and obtained support
from a range of white organisations.

In August 1963 the people of Yirrkala Methodist
Mission in north east Arnhem Land sent a petition painted on bark
to the Commonwealth Parliament protesting against the resumption of
140 square miles (330 square kilometres) of Gove Peninsula from the
Aboriginal Reserve. Special mining leases had been granted on the
excised land adjacent to the mission and it was planned to develop
a bauxite mine and build a township to house the mine workers.

The petition was written in the Aboriginal
language with an English translation. It stated that no explanation
had been made to the people about the procedure for the excision of
the land or of their fate, that their views had not been
communicated to the Government, that the land had been their
hunting grounds for time immemorial and that it contained sacred
places. The petition said that '... the people of this area fear
that their needs and interests will be completely ignored as they
have been in the past, and they fear that the fate which has
overtaken the [Aboriginal people from the Darwin area] will
overtake them.' It asked the House of Representatives to establish
a Committee to hear the views of the Yirrkala people before the
land was excised, and requested that:

... no arrangements be entered into with any
company which will destroy the livelihood and independence of the
Yirrkala people.(195)

On the motion of Mr Beazley a Select Committee
was established in September 1963. It took evidence in Darwin and
Yirrkala. Aboriginal witnesses who were interviewed with the aid of
interpreters complained that they had not been given any
information about the mining development. They did not necessarily
oppose the development but they believed that there should be
negotiations with them as the land owners and that if the mine were
to go ahead they should share in the benefits.

The Committee accepted some of the arguments put
to it by the Yirrkala people. It found that there had been some
communication problems and recommended that measures be implemented
to protect hunting rights and sacred places. Also it recommended
that there be some compensation in the form of land and capital
grants and a monetary payment for the loss of occupancy. The
Committee, however, was clear that the excision of the land had
been done legally. It also took the view that the development could
help the social advancement of Yirrkala people. The building of a
town and a mine should not necessarily reduce the Aborigines to
fringe dwellers. The Committee recommended the adoption of measures
to provide opportunities for the Yirrkala people to participate in
the opportunities the development would offer.(196)

Two years later when the Government entered an
agreement with the mining company Comalco for the development to
proceed, Beazley moved in the House of Representatives that the
recommendations of the Select Committee, especially those relating
to the formation of a Standing Committee to monitor developments,
be implemented.(197) The Minister of Territories, the
Hon. C. E. Barnes, (Country Party, McPherson, Qld)had taken the
position that the welfare of Aborigines at Yirrkala could be
handled by the Northern Territory Legislative Council and that
adequate safeguards were in place. Beazley argued that the Northern
Territory Legislative Council was not a representative body which
could properly represent the interests of
Aborigines.(198) The Commonwealth Parliament was the
only body which could act independently of vested interests and the
Administration of the Northern Territory. Other Opposition members
argued that on all important matters which affected the interests
of the Yirrkala people-the control of the reserve land, the signing
of the lease with the mining company-it was the Commonwealth
Parliament which was responsible to the people of Australia. It was
not sufficient to leave the matter of the conditions of the people
of Yirrkala to the Legislative Council in the Northern Territory.
Bryant said that:

[w]e are here concerned with a social operation
of extreme delicacy that has both national and international
implications. We are here attempting something which ... has not
previously been successfully attempted in Australia. The
impingement of white communities on Aboriginal communities in the
past has always brought disaster to the Aboriginal communities ...
[A]ll the resources of the commonwealth and all the sympathetic
scrutiny and complete regard of this Parliament ought to bear on
this question.(199)

Despite the continuing concerns of the Yirrkala
people the Government proceeded with the project as planned. With
the assistance of the Federal Council for the Advancement of
Aborigines and Torres Strait Islanders (FCAATSI), Methodist
supporters and others the Yirrkala people took their case to the
Northern Territory Supreme Court. In Mathaman and Others v
Nabalco Pty Ltd and Commonwealth (1969)(200) they
challenged the Government's right to grant a mining lease without
the approval of the inhabitants of the Aboriginal Reserve. The
court found that the Commonwealth was not obliged to obtain
approval. In a second case, Milirrpum v Nabalco Pty Ltd and the
Commonwealth of Australia (1971)(201) the Yirrkala
people took a more radical step, arguing that their traditional
ownership of the land should be recognised by Australian law. Mr
Justice Blackburn in the Northern Territory Supreme Court found
that Australian common law did not recognise native title to
land.

One area where Aborigines in the Northern
Territory might have hoped the assimilation policy announced by
Hasluck in 1951 would have made an immediate change was in the
conditions of workers in the cattle industry. Aboriginal conditions
of employment on cattle stations had changed little since the
revelations of the Bleakley Report. In 1944-45 Ronald and Catherine
Berndt undertook a detailed and extremely well documented study of
employment conditions, race relations and cultural change on both
cattle stations and army camps in the Northern Territory. The
Berndts contrasted the relative good circumstances of Aboriginal
families working and living on the armed forces settlements with
the 'appalling working conditions, the squalor and poverty ...
endemic malnutrition and the high rate of infant mortality' on many
cattle stations.(202) Employers on pastoral properties
expressed resentment at the Army for having 'spoilt' and 'ruined'
the Aborigines as it would be difficult to get back to 'normal
conditions' of employment.

The example of the employment of Aborigines on
armed forces settlements made two connected questions more
difficult to avoid. First, what were the appropriate wages and
conditions for Aboriginal employees on pastoral properties.
Secondly, in the words of C. D. Rowley:

whether any industry which could not provide for
its workers the basic necessities for a materially safe and
civilised life, by western standards, was worth subsidising at the
cost of miseries which the workers had never had to endure as
nomads.(203)

In 1948 the Commonwealth Conciliation and
Arbitration Commission, the precursor to the Australian Industrial
Relations Commission, rejected an application by the North
Australian Workers' Union to have Aboriginal workers in the cattle
industry receive equal pay with white workers by having them
included in the Cattle Industry Award.(204) In line with
its previous decision the Commission accepted the argument that it
had no jurisdiction over Aboriginal wages which were set by
Regulations made under Northern Territory Ordinances. The
Regulations gazetted in 1949 provided for a cash wage of one pound
a week plus minimal rations and accommodation, a fraction of the
rates paid to European workers.(205)

The adoption of an assimilationist policy by the
Commonwealth did little to change this situation. The status of
Aboriginal workers, and the level of pay did not change until 1959
when the supposedly non-racial Welfare Ordinance 1953 came
into operation. As discussed above almost all 'full-blood'
Aborigines in the Territory were declared to be Wards and continued
to have their levels of pay set by Regulations made under the
Wards' Employment Ordinance 1953. In 1959 after protracted
negotiations between the Northern Territory Administration and
employer groups the cash and allowances payment for male wards
employed in the cattle industry was set at just over three pounds a
week compared with the Award payment of more than 16 pounds
per week for the equivalent European workers.(206)

In 1965 the North Australian Workers' Union took
another case to the Commonwealth Conciliation and Arbitration
Commission applying to have Aborigines included in the Cattle
Station Industry (NT) Award with pay and conditions equal to other
workers. The pastoral industry opposed the application arguing that
it was in the best interest of Aborigines to have the Commonwealth
continue to set their wages by regulation. The Commonwealth,
however, intervened in the case and gave qualified support to the
union's case, submitting that Award conditions should be extended
to Aborigines but with provision for the improved conditions to be
phased in gradually.

The reasons for the Commonwealth's decision to
allow the matter to be decided by arbitration, rather than use its
powers to determine it by regulations are not clear. It was within
the power of the Commonwealth Government to use regulations to set
the Aboriginal wages in the Territory (as it had done previously)
or to use regulations to link Aboriginal wages to Award rates with
a phase in period. One explanation is that the Government had a
number of conflicting interests, and while it was under pressure
from the pastoral industry it was also increasingly coming under
international and domestic political pressure to remove
discrimination based on race (including that discrimination which
was veiled behind the legal category of ward).(207)

In March 1966 the Commission awarded 'equal pay'
to Aboriginal pastoral workers in the Northern Territory, but with
its implementation delayed until December 1968. It might have been
expected that the 'equal pay' decision, and the moves to extend
civil rights would have taken some of the pressure off the
Commonwealth Government. However, the reform, which came 15 years
after the Commonwealth Government had made a commitment to
assimilation and equal rights, came too late. Also the Tribunal's
decision to delay the implementation of equal pay, and attempts by
employers to find ways to get around the Award did little to
satisfy the demands by Aborigines for a better deal. Aborigines
remained an excluded group living in extremely deprived conditions
and in April 1966 the Aboriginal workers on Wave Hill cattle
station went on strike.

The action of the Gurindji people at Wave Hill
was not only a protest against wages and conditions and poor living
conditions, but also against the abuses suffered at the hands of
white overseers and jackaroos and the disregard shown for their
skills and abilities.(208) They had 'walked off' the
station because they had 'decided to cease being treated like
dogs'.(209) The Gurindji moved from the Welfare
Settlement at Wave Hill stations to a water supply at Wattie Creek
to set up their own township. They requested the return of 500 of
the 6000 square miles (1295 of the 15 540 square kilometres) of the
Wave Hill pastoral lease in order that they could live on their own
land independently of the pastoral company.

The Northern Territory Administration
unsuccessfully attempted to induce the Gurindji to leave their camp
at Wattie Creek and return to the Welfare Settlement at Wave Hill
where improved welfare and health facilities were promised. The
Gurindji held out at Wattie Creek and the cause was sympathetically
represented in many media accounts in which the deprived
circumstances of Aboriginal workers was contrasted with the power
and wealth of Vesteys, the British company which held the lease on
Wave Hill Station.

These two incidents-at Yirrkala and Wave
Hill-mark an important turning point. Neither were immediately
successful in achieving their goals. For the rest of its period in
office the Coalition Government opposed any recognition of prior
Aboriginal ownership of land.(210) In a statement to the
Parliament in 1970 the Minister for the Interior, P. J. Nixon, put
the Government's position:

the Government believes that it is wholly wrong
to encourage Aboriginals to think that because their ancestors have
had a long association with a particular piece of land, Aboriginals
of the present day have the right to demand ownership of
it.(211)

However both these events attracted national and
international attention. The Bark Petition and the strike at Wave
Hill drew attention to the deprived condition of Aborigines in the
Northern Territory and helped make Aboriginal Affairs a national
political issue. They became powerful symbols not only in a growing
political campaign for Aboriginal Land Rights but a wider campaign
for Indigenous Rights. In the Parliament Labor members took the
matter up with a number of questions to the Government, and in the
case of Yirrkala the parliamentary processes helped publicise and
promote the case of the Aboriginal Community. However, the issues
related to Indigenous Rights were never debated or pursued at
length until the campaigns had become national issues. Pressure
from the media and Aboriginal support groups more than any thing in
the Parliament put the Government under pressure on the issue.

The Whitlam Labor Government which came to
office in late 1972 explicitly rejected the policy of assimilation
in favour of self determination and in 1973 the Whitlam Labor
Government, in line with a promise made at the election, appointed
Mr Justice Woodward as Royal Commissioner to investigate how land
rights in the Northern Territory should be granted. In 1974 Whitlam
handed over to the Gurindji a lease for 3236 square kilometres of
land purchased from Wave Hill. The Land Rights (NT) Bill, which was
based on the recommendations of the Woodward Royal Commission, was
before the Parliament in 1975 when the Labor Government was
dismissed. A slightly modified form of the Bill was passed under
the Coalition Government of Malcolm Fraser in 1976. The Act
transferred all Aboriginal Reserves in the Northern Territory to
Aboriginal ownership, and established processes for Aboriginal
groups to claim their traditional lands which were still Crown Land
and for Aboriginal Land Councils and traditional owners to be paid
mining royalties.(212)

Another area where the Commonwealth had direct
dealings with Aborigines was through the establishment of the
Woomera Rocket Range, as part of the Anglo-Australian Joint
Project, in northern South Australia. At the end of World War Two
there were secret discussions between the British and Australian
Governments about building a facility in Australia for testing
guided missiles. In November 1946, in response to questions from
within and outside the Parliament about the proposed Rocket Range
and its impact on Aborigines in the area, the Minister for Defence,
the Hon. J. J. Dedman, announced that the path of the
Rocket Range would be in a line north-west from Woomera to the
Indian Ocean. In the first instance the Range would only extend 300
miles from Woomera, but it would be lengthened in stages through
the Central Aboriginal Reserves and on to the Western Australian
coast between Port Hedland and Broome.(213) The Minister
told Parliament that although '[t]he probability of a missile
falling on them would be extremely remote' every care would be
taken to protect Aborigines. He said that:

[r]eports that huge areas of central Australia
[would] be blasted by explosives [were] highly-coloured figments of
the imagination.

In relation to plans to establish observation
posts along the path of the Range in the Central Aboriginal
Reserves he said:

I am conscious of the need to do everything
possible to safeguard the Aborigines from contact or encroachment
on any area of special significance to them ...(214)

Despite the assurances of the Minister there was
a campaign of opposition to the project and heated public
debate.(215) The most prominent opponent of the Range
encroaching on the Central Aboriginal Reserves was the well
respected campaigner for Aboriginal rights, Dr Charles Duguid.

Not all opposition to the Guided Missile
project, however, related to protecting Aborigines. Pacifist and
anti-war arguments were also made against the deployment of
resources for the development of weapons. The various arguments
were often conflated by the opponents, and the proponents, of the
project. In the political climate of the late 1940s, with the
battle lines being drawn between left-wing pacifist groups and
anti-communist advocates of rearmament, even the most reputable
advocates of Aboriginal rights could easily be discounted as having
suspect motives once their cause had been joined by anti-war
activists.

Dr Duguid's credentials as an advocate of
Aboriginal rights could hardly be questioned. The concerns he
expressed in 1946-47 were in line with the position he had taken in
relation to Central Aboriginal Reserves, and his own tireless work
in that regard, since the mid-1930s. Duguid had been active in the
Presbyterian Church and the Presbyterian Board of Missions in
pressing for a greater commitment to Aborigines. He had made a
number of trips into the arid and largely unexplored country west
of Alice Springs in the 1930s and had been outspoken about the
economic exploitation of Aborigines in northern Australia. Duguid's
prescription for the protection of Aborigines living within the
Central Aboriginal Reserves was in line with the Commonwealth
policy for the Northern Territory-which had been adopted by McEwen
in 1939 on the recommendation of Dr Donald Thomson-of reserving
large areas of land for 'tribal' Aborigines and providing a buffer
against the intrusion of Europeans.

Duguid argued that contact between Europeans and
traditional Aborigines had always led to social disintegration,
pauperisation and misery for Aborigines. The only hope that the
process would not be repeated with those Aborigines who still
survived largely untouched in central Australia was for their
contact with Europeans to be carefully managed and for there to be
a period for adjustment. It would be necessary to stop the free
movement of Europeans through the land reserved for Aborigines so
that Aborigines could adjust to European society at their own pace
and on their own terms. Duguid had been instrumental in persuading
the Presbyterian Board of Missions to establish Ernabella Mission
in the far north-west of South Australia adjacent to the South
Australian section of the Central Aboriginal Reserves. Ernabella
did not conform to the popularly held picture of a mission.
Aboriginal culture was to be respected and European ways and
Christianity would not be forced upon the Aboriginal people.
Duguid's hope had been that in time a series of mission stations,
run on the same basis as Ernabella, with staff who respected
Aboriginal culture, would be established across the Central
Aboriginal Reserves to cushion the destructive effects of the clash
of cultures.(216)

In April 1947, in the House of Representatives,
Mrs D. Blackburn (Independent Labor, Bourke, Vic.) moved that:

[T]he proposal to establish a rocket bomb
testing range in Central Australia is an act of injustice to a
weaker people who have no voice in the ordering of their own lives;
is a betrayal of our responsibility to guard the human rights of
those who cannot defend themselves; and a violation of the various
charters that have sought to bring about world peace ...

She spoke against what she said were the
expensive preparations for war and the need to consider '... the
rights of the black men and women ... from whom we took this
country.'(217)

Mrs Blackburn obtained no support in the
Parliament. Much of the parliamentary debate was concerned with the
pacifist and anti-war objections to the development of the Range.
Members from both sides of the Parliament argued that the
development of long-range weapons, and the alliance with Britain,
were in Australia's interest and crucial to its defence. The
Liberal Opposition appeared to be even more in favour of the
project than the Government. The Leader of the Opposition, Rt Hon.
R. G. Menzies, said that preparation for the defence of 'the
British world' was imperative and that its importance out-weighed
the minimal danger to Aborigines.(218)

The parliamentary debate on Mrs Blackburn's
motion did raise questions about the direction of the
Commonwealth's Aboriginal policy. The alternative policy positions
of two prominent anthropologists-Dr Donald Thomson on the one hand,
and A. P. Elkin, the Professor of Anthropology at Sydney
University, on the other-were canvassed. Thomson, who had been a
long standing advocate of strictly preventing white encroachments
into land occupied by 'tribal' Aborigines in the Northern
Territory, had been influential in 1939 when the Minister for the
Interior had adopted a policy of protecting Aborigines 'still
living in tribal state' from intrusion and exploitation by
whites.(219) An alternative position was represented by
Elkin who espoused an active policy of assimilation, and who had
also played a role in the Minister of the Interior's adoption, in
1939, of a policy of achieving 'the ordinary rights of citizenship'
for Aborigines. In the face of the public protests against the
Woomera Rocket Range the Government had established an 'expert'
committee, comprised of a British and an Australian representative
of the project, a representative from South Australia, Western
Australia and the Northern Territory, and importantly Professor
Elkin, to examine the possible impact of the proposed Rocket Range
on Aborigines.(220)

The Committee interviewed Dr Duguid, who was
accompanied by Dr Thomson. The Committee in its Report explicitly
rejected Duguid's and Thomson's objections that the Rocket Range
endangered the welfare of Aborigines:

after hearing the views expressed by Dr Charles
Duguid and Dr Donald Thomson, the Committee confirmed its
conclusion ... It was of the opinion that neither of these
gentlemen had advanced any reason which precluded the making of
satisfactory arrangements to ensure the safety and welfare of the
aborigines in the proposed range area.

The Committee also questioned the policy which
had been advocated by Thomson and Duguid. It concluded that:

[d]e-tribalization of the aborigine is
inevitable, and, provided the contacts brought about by the
construction and use of the range are controlled and of a wholesome
nature, the only effect would be the putting forward of the clock
regarding de-tribalization by possibly a
generation.(221)

The Committee also argued that 'satisfactory
arrangements [could] be made to ensure the safety and welfare of
the aborigines in the proposed range area'. The Committee was also
satisfied that there would be no interference with the Aborigines
of the Central Reserves through the mass movement of Aborigines or
the employment of Aborigines. No roads would be built in the
Reserves and personnel for the proposed observation posts would be
flown in and out.(222)

In support of the proposal to establish the
Rocket Range the Minister for Defence quoted a letter from
Elkin:

I, personally, am satisfied that the welfare of
the aborigines is not jeopardized by the experimental work that is
to be undertaken and that most of the opposition is emotional and
unenlightened. [I]t is the duty, not only of the Government, but
those of us who are experienced in these matters of contact, to see
that by positive measures no harm comes to aborigines, either
directly or indirectly.(223)

From Duguid's point of view the debate on
alternative policy approaches may have been a false dichotomy.
Duguid was a passionate believer in racial equality and advocated
equal rights for Aborigines. His goal was the achievement of social
and economic equality for Aborigines in the broader Australian
community. His concern, however, was that in all previous
encounters between 'tribal' Aborigines and Europeans Aborigines had
not only been dispossessed of their land and denied legal equality,
but had become degraded paupers and fringe dwellers within the
European society. His hope for those Aborigines remaining on the
Central Reserves was that with protection against white intrusion,
and with the contacts with Aborigines made by Europeans who
respected Aboriginal culture, the 'de-tribalisation' might be much
less destructive. In the mood of the 1940s and 1950s, however,
Elkin's argument was much more attractive to the Government, and to
the vast majority of the Parliament, than was that of Duguid and
Thomson.

Although the groups opposed to the Rocket Range
passing through the Reserve had not been successful in having the
project relocated there was the consolation that the Government had
given clear assurances to the Parliament in relation to the
protection of Aborigines from intrusion on to the Reserve; no roads
would be built into the Reserve and Native Patrol Officers would be
appointed to see to the welfare of the
Aborigines.(224)

It is possible that the undertakings given in
the Parliament might have been kept, and the development
of Woomera Rocket Range might have had little effect on
the Aborigines living in the Central Reserves, had it not been for
the subsequent development of an atomic weapons testing program.
Following secret negotiations, which commenced in 1950, the British
Government obtained agreement to test atomic weapons in Australia.
The initial commitments on behalf of Australia were made on the
basis of discussions between the British Government and the
Australian Prime Minister, the Rt Hon. R. G. Menzies, without any
discussion in Cabinet, much less in the Parliament.(225)
Between 1952 and 1957 a series of atomic tests were conducted at
Monte Bello Islands, 80 kilometres off the coast of northern
Western Australia, Emu in the Great Victoria Desert 400 kilometres
north-west of Woomera, and Maralinga, north of Ooldea on the
Transcontinental Railway 500 kilometres west of
Woomera.(226)

The test sites and surrounding areas were made
restricted areas and all but the most basic information about each
explosion was kept secret. It was not until the 1984 Royal
Commission on British Nuclear Tests that many of the details about
the nature of the spread of radioactivity were revealed.

When the testing program was announced there was
no opposition to the atomic tests from the Labor Party which only
raised questions seeking reassurance about safety. In the
Parliament the debate about atomic testing related to the safety of
people in the settled areas and the implications of the tests for
the international arms race. There were no specific questions about
the possible effects on Aborigines. Prior to the first mainland
test in October 1953 the Minister for Supply, the Hon. O. H. Beale,
assured the House of Representatives that the cities were
safe.(227) On 15 October (which coincidentally was the
day of the first mainland test) a Government backbencher, W. C.
Wentworth, initiated a major debate on the testing of nuclear
weapons, with a motion 'directed to the avoidance of war and world
disaster'. The motion urged the United Nations:

to devise and implement forthwith a world-wide
and water-tight system for the control of atomic armaments.

In that whole debate there was no mention of the
tests being carried out in Australia.(228) The day after
the test the Prime Minister, on the basis of a reported statement
of Professor Titterton of the Safety Committee, assured the
Parliament that there had been no adverse effects.(229)
A week later the Prime Minister said that:

[i]t has been stated most authoritatively that
no conceivable injury to life, limb or property could emerge from
the test ... [I]t would be unfortunate if we in Australia began to
display some unreal nervousness on this point ... If the
experiments are not to be conducted in Australia, with all our
natural advantages for this purpose, we are contracting out of the
common defence of the free world. No risk is involved in this
matter.(230)

Until 1957-the final year of the major
explosions-very little was said in the Parliament about the impact
on Aborigines. Throughout the whole period of the trials the
Government continued to argue, on the basis of advice from
scientific experts, that the tests were safe. On many occasions the
Minister for Supply and the Prime Minister assured the Parliament
that there would be no injury to life or property.(231)
In response to the very few questions that were asked the
Government assured the Parliament in the most vague and general
terms that Aboriginal interests and safety were being protected. In
September 1956, for example, in reply to a question the Minister
for Supply said,

[e]ver since the commencement of the joint
project, the Government has given carefully consideration to the
welfare of aborigines.(232)

The Minister was also adamant that no
radioactive cloud drifted over Aboriginal territory and that great
care was taken to ensure that no Aborigines were in the area of the
tests.(233)

Despite the assurances that were given to the
Parliament, and the undertakings which had been given when Woomera
was established, the trials at Emu and Maralinga did lead to the
disruption of Aborigines in the way Duguid and others had
feared.(234) There were intrusions into the Central
Reserves, some Aborigines were subject to high levels of radiation,
Aborigines were moved from the Ooldea and surrounding areas and
were prevented from travelling to their traditional hunting and
ceremonial areas in the Maralinga area, and some Aboriginal lands
around Maralinga were left in an unusable condition because of
radioactive contamination.

Also the claims made in Parliament that there
had been no spread of radiation, and that there was no possibility
of any harm being caused by the tests, proved to be false. The
Royal Commission into the British Nuclear Tests in Australia
concluded that the first land based test at Emu on 15 October 1953
resulted in the spread of a radio-active cloud which drifted
north-west from Emu and caused illness in Aborigines living on
Wallatinna and Wellbourne Hill pastoral properties approximately
160 kilometres from the explosion.(235)

One matter which directly related to the welfare
of Aborigines was the determination of how far people needed to be
from the explosion to avoid harmful levels of radiation. At the
time of the tests the calculations of 'safe' levels of radiation
were highly confidential. The initial calculations of the
'acceptable' levels of radiation, which applied for the first
tests, were made on the assumption that the population lived in
houses and wore clothes and shoes. On the basis of this calculation
the minimum distance between the explosion and any population was
set at 160 kilometres. In 1956, at the request of the
Australian Atomic Weapons Testing Safety Committee, the acceptable
level of fallout for 'people living in semi-primitive conditions'
was determined. It was set five times lower than for the remainder
of the population. The new standard for 'tribal' Aborigines, if
acted upon, presented a problem for the test program because the
fallout from planned tests would have exceeded the new maximum
level for a distance of up to 400 kilometres from Maralinga. A
number of cattle stations, Ernabella Mission and part of the
Central Aboriginal Reserve were within that distance of Maralinga.
Having raised the matter of Aboriginal safety, the Safety Committee
then appeared to ignore it. A highly technical and ambiguous
submission on the maximum levels of fallout was sent to the
Australian Cabinet which in turn made an ambiguous decision which
was taken to give authority for the planned tests
proceed.(236) The Royal Commission found that the tests
at Maralinga in 1956 were conducted in 'conditions which violated
the firing criteria' and the fallout did exceed the proscribed
maximum levels.(237) Milliken concludes that '...
despite the apparent flurry of belated concern ...' by the
Australian Safety Committee about fallout levels and 'tribal'
Aborigines '... there was never any real prospects of making sure
that the new restrictions worked'.(238)

The project had obtained a scientific or
bureaucratic rationale of its own which was quite independent of
the commitments made in the Parliament, including assurances about
protection of Aborigines. This was starkly demonstrated by the
relationship between the Native Patrol Officer, Walter MacDougall,
and those in control of the project.

MacDougall had been appointed by the
Commonwealth Government as Native Patrol Officer in 1947 following
undertakings to the Parliament by the Minister of Defence. He had
previously worked at Ernabella Mission and was a very experienced
bushman. By any account MacDougall was a remarkable
man.(239) He stands out in the way in which he spoke out
against actions which he believed threatened the welfare of
Aborigines and what he saw as breaches of the undertakings which
had been given by the Government. The Royal Commission into British
Nuclear Test in Australia described the ongoing conflict between
MacDougall and his superiors about the protection of Aborigines
during the Emu and Maralinga tests and the persistence with which
MacDougall spoke up within the organisation for the rights of
Aborigines. At the same time that confident assurances were being
given that the trials were having no adverse effects MacDougall was
warning that insufficient effort had been made to determine the
location and numbers of Aborigines in the vast area covered by the
range and to ensure that no Aborigines came too close to the test
areas.(240)

Documents quoted in the Royal Commission
revealed that MacDougall made repeated reports that he could not be
certain about the numbers or movements of Aborigines in the area.
The Royal Commission Report states that:

[o]ne man ... could not be expected to have a
complete picture of the demography and lifestyles of the people ...
scattered over and travelling around an area in excess of 100 000
square kilometres.(241)

MacDougall was shown to have been right to have
been concerned when in May 1957 a family of Aborigines (two adults
and two children) were discovered at Maralinga coming from the
crater of an atomic test which had been conducted in October 1956.
They were collected and tested for radioactive contamination. The
level of radioactivity on these people was not considered by the
officials to be 'harmful'. They were showered, and in a state of
shock, transported to Yalata Mission. As people who had previously
had almost no contact with Europeans they were terrified by the
whole experience. One observer at the time said that they 'were in
a state of apprehension and bewilderment and ...
frightened'(242) The woman was pregnant at the time and
her baby was born dead. Whatever the cause of the still birth the
women from the area believed that it was the result of the 'poison'
in the ground.(243) It is not clear what long-term
physical effects the radiation had but the woman continued to be
traumatised by the incident, probably for the remainder of her
life. The authorities took no further interest in the physical or
psychological welfare of the family. The Royal Commission observed
that:

[t]he only follow-up action was taken at the
Range Commanders request, on receiving instructions from ... the
Secretary of the Department of Supply: the dogs [which had been
with the family], having escaped the showering process, were shot
in case they had been contaminated!(244)

Because the incident was seen as a 'political
embarrassment' it was keep secret. The personnel who had been
involved in the incident were reminded that they were covered by
special security provisions and that there:

could be great difficulties for them if they
started breaking the security that was required of them in this
matter.(245)

The Royal Commission concluded that:

the attempts to ensure Aboriginal safety during
the [1956 tests] demonstrates ignorance, incompetence and cynicism
on the part of those responsible for that safety. The inescapable
conclusion is that if Aborigines were not injured or killed as a
result of the explosions, this is a matter of luck rather than
adequate organisation, management and resources allocated to
ensuring safety... [A] site was chosen on the false assumption that
the area was not used by its traditional owners. Aborigines
continued to move around and through the Prohibited Zone and
inadequate resources were allocated to locating them and to
ensuring their safety. The reporting of sightings of Aboriginal
people was discouraged and ignored.(246)

MacDougall also clashed with the project leaders
over intrusions into the Central Reserves. Peter Morton, in a
history of Woomera and the Anglo-Australian Joint Project, gives an
account of MacDougall's reports and his correspondence with his
supervisors.(247) In 1955 it was decided to establish a
meteorological station at Giles in the Rawlinson Ranges, within the
Western Australian part of the Central Reserves. MacDougall
objected to the choice of a location in the Aboriginal Reserve. The
site chosen would lead to unnecessary interference with the
Aborigines in the vicinity, and other equally good sites could be
found outside the Reserve. MacDougall also believed that he had
been included in a reconnaissance party, which ostensibly had the
task of choosing the site of the weather station, simply to give
credibility to the decision which had already been made to locate
the station at Giles. In his report of the reconnaissance trip he
said '[t]here was no attempt made to select a site that would
interfere as little as possible with Aborigines occupying the
Rawlinson Range'. He objected to the failure to comply with
commitments of the Government:

the actions and attitude of the reconnaissance
party shows that there is no intention of fulfilling or seriously
regarding the promises made by the Commonwealth to the People of
Australia ... [P]rogress and science must advance, but if existing
measures necessary for the protection and welfare of Aborigines are
obsolete, impracticable or to be disregarded, please publish the
fact so that new measures can be taken, and organisations function
smoothly and without false pretences.(248)

In a subsequent memo relating to the 'untrained'
staff who would be sent to Giles, MacDougall said:

'[t]he result is certain to be a degeneration
from self-respecting tribal communities to pathetic and useless
parasites-it has happened so often before that surely we
Australians must have learnt our lesson.

He also observed that as an area was to be
excised from the Aboriginal Reserve the project now involved the
appropriation of land which he said:

belongs to the tribe and is recognised as such
by other tribes. However, we propose to take it away from them and
give nothing in return-we might as well declare war on them and
make a job of it.

The Chief Scientist wrote to the Controller of
the Weapons Research Establishment in March 1956 concerning
MacDougall's complaints:

in the first place, Mr McDougall [sic]
is not concerned with policy matters: these are the responsibility
of more senior officers, and Mr. McDougall's duties are to ensure
that any extension of the [project's] activities is carried out in
such a way that the impact [on] any aborigines in an area involved
in such an extension, is kept to a minimum. To this end he should
accompany reconnoitring or other parties going into areas where
aborigines may be expected to be encountered. This duty, and this
duty only, is Mr McDougall's concern, and we look to him for
advice and guidance in this particular aspect ... The setting up of
the Maralinga meteorological station is no concern of
Mr McDougall's ... The joint project has been agreed between
two Governments ... These decisions having been taken on a very
high level, it behoves all of us to implement them with the least
possible upset to any existing economy in the territory concerned,
whether it be aboriginal or pastoral ... [H]e is out of step with
current opinion, and the sooner he realises his loyalty is to the
Department that employs him, and which is glad to take advice from
him on matters on which he is an expert, the sooner his state of
mind will be clarified, and he will be enabled to carry out his
duties without any sense of frustration or disappointment, as is
evident in your assessment.

The same letter contained the very revealing
statement:

your memorandum discloses a lamentable lack of
balance in Mr McDougall's outlook, in that he is apparently placing
the affairs of a handful of natives above those of the British
Commonwealth of Nations.(249)

Six months later in reply to a question seeking
the reports of the Patrol Officers the Minister for Supply, Howard
Beale, said in the House of Representatives that since Woomera had
been established the:

care and welfare of Aborigines has been in the
forefront of the minds of officers managing and administering the
range. It is not usual to publish official reports of this kind,
but there has not been one single instance reported of harm or
injury to an aboriginal due to range
operations.(250)

The establishment of the Giles Weather Station
did result in exactly the sort of disruption that Duguid and
MacDougall had predicted. Aborigines who had lived a largely
undisturbed traditional life in the vicinity were attracted to a
scavenging and, to the eyes of most observers, a squalid fringe
dwelling life on the periphery of the Weather Station, where the
European workers lived in relative material comfort.

It was the development at Giles more than any
other part of the atomic test which, at the time, created a public
controversy. It was not, however, the scrutiny of the Commonwealth
Parliament which brought the question to public attention. The
matter was given prominence by a Select Committee of the Western
Australian Parliament which was chaired by a Liberal member, W. A.
Grayden. The Report of the Select Committee, and a book published
by Grayden, presented a picture of Aborigines in the remote eastern
part of Western Australia as being in a sickly and starving
condition, and made accusations of interference with Aborigines by
Europeans who had come to construct roads and to work at the
Weather Station. Grayden also argued that Aborigines, forced from
their land by the atomic tests, had put pressure on resources in
adjacent areas in Western Australia which had left Aborigines there
in a particularly deprived condition. Subsequent investigations
showed that some of Grayden's claims were exaggerated. However, the
claim that the Aborigines' lifestyle had been transformed, and the
contrasting picture of the lifestyle of the Aborigines and the
European workers at Giles, could not easily be dismissed. Also,
while Grayden's claims about the removal of people from the area of
the atomic tests to Western Australia may have been false, it was
the case that Aborigines had been removed from the Maralinga area.
On the one occasion that the claim that Aborigines had been pushed
from their land to accommodate the tests was raised in the
Commonwealth Parliament it was flatly and summarily dismissed by
the Government.(251) However, as the Royal Commission
into British Nuclear Tests in Australia showed, Aborigines were
removed from their country on account of the tests. Prior to the
tests at Emu in October 1953 Aboriginal people who had lived at
Ooldea, and in the surrounding country, were moved over 100
kilometres to the South to Yalata Mission near the Great Australian
Bight. The decision to move the people away from their country, and
to prevent them from returning, was taken as a direct result of the
atomic tests.(252) It was not until 1983, with the
passage of the South Australian Bannon Labor Government's
Maralinga Land Rights Act, that the Maralinga People were
given the opportunity to return to their land.(253) Even
then, areas of land had been rendered permanently uninhabitable by
some of the highly secret so-called 'minor tests' which took place
between 1958 and 1961 which resulted in the dispersal of plutonium
over many square kilometres.

Questions in the Parliament in the 1970s and
1980s-when public attitudes to atomic tests had become much more
hostile-brought a number of previously secret matters to public
attention and contributed to the decision of the Government in 1984
to establish the Royal Commission into British Nuclear Tests in
Australia, but in the whole time the atomic tests were being
conducted the Commonwealth Parliament played almost no role. The
Parliament provided no real check on the atomic tests or on their
impact on Aborigines. Few questions were asked and almost nothing
was done by the Parliament to question or investigate what was
actually happening in the tests. An emphatic undertaking that was
given to the Parliament was simply taken at face value. What
scrutiny, checking and questioning there was, or advocacy on behalf
of Aborigines, largely came from outside the Commonwealth
Parliament.

In 1967 the Parliament passed legislation for a
referendum to remove s. 127 and the excluding clause from s.
51(xxvi) of the Constitution. This was the culmination of a
vigorous campaign by Aboriginal groups and Aboriginal advancement
associations to change the Constitution, and of a number of debates
in the Parliament on the Commonwealth's role in Indigenous
Affairs.

One element in the argument for Constitutional
change was that the exclusion of Aborigines was discriminatory.
Another was that the costs of providing the necessary welfare
benefits and programs for the advancement of Indigenous peoples
should not be, and could not be, borne by the States which had the
largest Aboriginal population. An argument which had been made
periodically, since the first speech in the Parliament on
Aboriginal Affairs by Hugh Mahon, was that internationally the
whole nation would be judged on the treatment of Indigenous peoples
and so it should be the national government which had the
constitutional powers to deal with the matter. Behind these various
propositions there was a general theme in the advocacy of
humanitarian and Aboriginal associations that Aboriginal welfare
would be better served if the Commonwealth were to take over
Aboriginal Affairs.

The Royal Commission on the Constitution which
reported in 1929 had considered the question but was not unanimous
on the question of s. 51(xxvi). The majority recommended against
change, in terms which were revealing about the prevailing ideology
of the time:

we do not recommend that section 51(xxvi) be
amended so as to empower the Commonwealth Parliament to make laws
with respect to aborigines. We recognise that the effect of the
treatment of aborigines on the reputation of Australia furnishes a
powerful argument for the transference of control to the
Commonwealth. But we think that on the whole the States are better
equipped for controlling aborigines than the Commonwealth. The
States control the police and the lands, and they to a large extent
control the conditions of industry. We think that a Commonwealth
authority would be at a disadvantage in dealing with the
aborigines, and that the States are better qualified to do so.

The minority report argued for the Commonwealth
Parliament having power in Aboriginal matters because the whole
nation should accept financial responsibility for
Aborigines.(254)

In the post-World War Two period the campaign
for Constitutional change was pressed more vigorously inside and
outside the Parliament. To some extent the debates in the
Parliament reflected the different positions the parties had on
federal arrangements. In the debate on the Constitutional Amendment
Bill 1944 Labor's Attorney-General, the Hon. H. V. Evatt,
appeared to think that no argument was necessary for the
proposition that the Commonwealth should have power in relation to
Aboriginal Affairs. The Leader of the Opposition, the Rt Hon. R. G.
Menzies, expressed concern about any proposal which expanded the
Commonwealth's power. Hasluck also was cautious about disturbing
federal arrangements. In his important 1950 speech arguing for a
lead from the Commonwealth he had only sought greater cooperation
between the Commonwealth and the States and more Commonwealth
funding-not a Commonwealth takeover.

In 1959 the Joint Committee on Constitutional
Review recommended that s. 127 be repealed, but made no
recommendation on s. 51(xxvi). No immediate steps were taken to
implement any of the recommendations of the Review. However,
demands for constitutional change from reform organisations and
Aboriginal groups became more insistent and for many activists it
came to be seen as a key to Aboriginal advancement.

At its 1961 Federal Conference the Labor Party
adopted a policy of removing both s. 127 and the exclusionary
clause from s. 51(xxvi) from the Constitution.(255) In
August 1962 Kim Beazley snr moved an Urgency Motion in the House of
Representatives urging the Parliament to legislate for a referendum
to make those changes to the Constitution. In support of the motion
he argued that the exclusions were discriminatory and that their
removal would allow the Commonwealth to act to remove many of the
disabilities which Aborigines were subjected to under State laws
(though he noted that not all discriminatory State laws would be
affected by the proposed changes).

Hasluck agreed that s. 127 should be removed
from the Constitution but argued that removing the excluding clause
from s. 51(xxvi) would be a move in the wrong direction. The effect
of changing s. 51(xxvi) would be to allow the Commonwealth to make
special laws for Aborigines. The object, however, should be the
reverse. The policy of assimilation sought to remove all special
provisions for Aborigines and to have Aborigines become full
citizens. There should be no legal distinctions between Aborigines
and other Australians. Hasluck referred to what he said had been
happening successfully under Commonwealth administration in the
Northern Territory.

During the term of this government we have
brought in amendments in the Northern Territory to lessen, as much
as we can the application of any special legislation to these
people.(256)

No member appears to have contradicted the
statement.

The following year the Leader of the Opposition,
the Hon. A. A. Calwell, (ALP, Melbourne, Vic.) introduced a private
member's bill-the Constitution Alteration (Aborigines) Bill
(1964)-for a referendum to remove both exclusionary provisions from
the Constitution. Again the Government accepted that s. 127 should
be repealed but argued against the removal of the words 'other than
the aboriginal race in any State' from s. 51(xxvi). The difference
between the Government and the Opposition on this question was
partly the result of different approaches to federalism but it also
revealed some difference in the approach of the two parties to the
implementation of the assimilation policy.

Labor speakers argued that the Commonwealth
power should be used to take positive steps to remove Aboriginal
disadvantage. Calwell went further and suggested that he had some
reservations about an assimilation policy which was simply aimed at
the absorption of Aborigines into white society:

the Aborigines are not a dying race; they are
not being absorbed, or assimilated ..., and there are many educated
and sophisticated aborigines who want to see their race preserved
intact, who do not want to be absorbed by the majority of
Australians.(257)

Calwell urged action but did not say how
enhanced Commonwealth powers might be used to achieve the policies
he hinted at.

The Attorney-General, the Hon. B. M. Snedden,
(Liberal, Bruce, Vic.) again argued that the Government's objective
was to remove all special laws which applied to Aborigines. If the
Government were successful, he said, there would be no need for the
Commonwealth to have power to make special laws. Indeed, the
exception in s. 51(xxvi) should be seen as a constitutional
protection. Snedden said that:

[t]hese words were put there as an essential
safeguard for the aboriginal race so that special laws
discriminating against a race could not be laws discriminating
against the Aboriginal race. The essential intention of those words
from the outset was the provision of a safeguard: the words were
not meant to be discriminatory.

Snedden explicitly rejected the idea that the
Commonwealth might make special laws which were beneficial to
Aborigines.

Even beneficial discrimination is
discrimination. We want to move to a stage where there is no
special legislation whether it is beneficial or
disadvantageous.(258)

On both sides of the Parliament there appeared
to be satisfaction with the claim that the Commonwealth was doing a
good job in the Northern Territory.(259) The Bill lapsed
at the dissolution of the Parliament.

In November 1965 the Prime Minister, the Rt.
Hon. R. G. Menzies, introduced the Constitutional Alteration
(Repeal of s. 127) Bill for a referendum to remove s. 127 from
the Constitution. In presenting the Bill Menzies explicitly
rejected the idea of amending s. 51(xxvi). He repeated the
argument that the exception in it did not discriminate against
Aborigines, but actually provided a protection:

what should be aimed at, in the view of the
government is the integration of the Aboriginal in the general
community, not a state of affairs in which he would be treated as
being of a race apart. The mere use of the words 'Aboriginal race'
is not discriminatory. On the contrary, the use of the words
identifies the people protected from discrimination. ... If the
words were removed ... it would change dramatically the scope of
the plenary power conferred on the Commonwealth. If the Parliament
had, as one of its heads of power, the power to make special laws
with respect to the Aboriginal race, that power would very likely
extend to enable the parliament to set up, for example, a separate
body of industrial, social, criminal and other laws relating
exclusively to Aborigines. It is difficult to see any limitations
on the power ... Conferring such a new power could have most
undesirable results.(260)

Menzies raised the possibility of other changes
to s. 51(xxvi). The whole sub-section (xxvi) could be repealed.
While he thought that the idea had merit-the power had never been
used by the Commonwealth-he thought that in an uncertain world it
was possible that the Commonwealth may have good cause to use it in
the future. The other amendment which had been suggested was to add
a new provision which would invalidate any Commonwealth or State
laws which discriminated on the grounds of 'race'. This, he said,
(on the basis of the experience of the United States with the 'bill
of rights') might do no more than produce definitional arguments
and 'a crop of litigation' which 'could readily invalidate laws
which, while designed to protect the special interests of
Aborigines, could be held technically to discriminate either for or
against them.'(261) W. C. Wentworth, a government
backbencher, spoke in support of the argument made by the Prime
Minister on the dangers of simply removing the words 'other than
the aboriginal race in any state' from s. 51(xxvi). Such a
move would allow the Parliament in future to pass special
discriminatory laws for Aborigines. Also, to simply remove s.
51(xxvi) would do nothing to prevent the States from passing
special discriminatory laws. Wentworth argued that the Constitution
should be amended to give the Commonwealth power to make laws for
the advancement of Aboriginals and to add a prohibition on
discrimination on the grounds of 'race'.(262) Subsequently he
introduced a private member's bill for such a change (see
below).

The Opposition supported the repeal of s. 127
but argued that the Bill should also contain a proposal to amend s.
51(xxvi). Opposition members argued that the exclusion of
Aborigines from s. 51(xxvi) had not protected Aborigines from
discriminatory Commonwealth social security benefits and voting
rights laws. It would be better, therefore, they argued, to 'confer
upon the Commonwealth a positive power to make laws for the benefit
of Aborigines' by removing the exception from
s. 51(xxvi).(263) Opposition speakers, and
Wentworth, agreed with the Prime Minister that it would be
undesirable for Commonwealth laws to be used to make Aborigines a
'race apart'. Wentworth argued that any expanded Commonwealth power
could be used to create a 'non-racial, homogenous
society'.(264)

Wentworth's Constitutional Alteration
(Aborigines) Bill 1966 contained two parts. He proposed that s.
51(xxvi) be repealed and in its place the Commonwealth Parliament
be given power to make laws for 'the advancement of the Aboriginal
natives of the Commonwealth of Australia', and secondly a new
section be added-section 127A-as follows:

neither the Commonwealth nor the States shall
make or maintain any law which subjects any person who is born or
naturalised within the Commonwealth of Australia to any
discrimination or disability within the Commonwealth by reason of
his racial origin.(265)

Wentworth argued that it was desirable to remove
s. 51(xxvi):

the plenary racial powers in sub-section (xxvi)
are not needed, and indeed, they are an impediment to the good name
of Australia overseas.(266)

Speakers from both sides of the House supported
the Bill.(267)

One member noted a point which related to a
question which was rarely, if ever, raised in this context; the
applicability of the constitutional provisions on Aborigines to
Torres Strait Islanders. M. D. Cross (ALP, Brisbane, Qld) said that
it was understood that the provision would apply to Torres Strait
Islanders.

It is important in drafting any legislation
relating to the Aboriginal people to realise and recognise that
Torres Strait Islanders do not regard themselves as Aborigines.

It would be many more years before that point
was made explicit in any Commonwealth
legislation.(268)

The whole debate had no immediate results. The
Constitutional Alteration (Repeal of s. 127) Bill 1965, and
another referendum proposal-the Constitutional Alteration
(Parliament) Bill 1965 which sought to alter the Senate 'nexus' in
s. 24 which required that number of members of the House of
Representatives be 'as nearly as practicable, twice the number of
the senators'-were both passed through the two Houses of the
Parliament with the support of both sides but neither was submitted
to referendum. The Wentworth Bill lapsed at the dissolution of the
Parliament.(269)

The next year, after Menzies' retirement in
January 1966, the new Prime Minister the Rt Hon. H. E. Holt,
introduced two bills to alter the Constitution. The first, the
Constitution Alteration (Parliament) Bill 1967, proposed the
removal of the Senate 'nexus' in the same term as the 1965 Bill.
The second, the Constitution Alteration (Aborigines) Bill 1967
proposed both the removal of the words 'other than the aboriginal
race in any State' from s. 51(xxvi) and the deletion of s.
127.

The Aborigines Bill was dealt with speedily by
the Parliament. It passed through all three readings in the House
of Representatives on the same day. The Prime Minister explained
that the Government had reconsidered the question of s. 51 (xxvi),
and had been influenced by the 'deep rooted' belief that the
exclusionary clause was discriminatory. He said that the Government
had decided against the inclusion of a 'constitutional guarantee
against discrimination on the ground of race'. Although it was an
'attractive' proposition there were disadvantages: it 'could
provide a fertile ground of attack on the constitutional validity
of legislation which [the Government did] not consider
discriminatory' and would only limit governments without preventing
discriminatory behaviour by individuals.(270)

The Bill was supported by the Opposition. The
Leader of the Opposition agreed that a constitutional guarantee
against discrimination was likely to result in 'greater benefits to
lawyers than to litigants'. It was better, he said, 'to keep the
position simple as this will enable the members of the National
parliament to carry out their duties'.(271) Wentworth
supported the Bill saying that although he thought his own Bill
'was perhaps better for the Aboriginal people', the Government's
Bill gave 'more than three-quarters of the substance' of what he
was seeking.(272) The Bill passed the House of
Representatives and the Senate without dissent.

The Government's reasons for a change of mind
had more to do with its perception of public opinion, and concern
about Australia's international image than with any conviction that
the change was desirable.(273) Had the Government hoped
that in putting the two questions simultaneously-the Aboriginal
question and the Senate 'nexus' question-the less popular question
on the Senate 'nexus' would get more support by being associated
with the politically popular change in relation to Aborigines, it
was not realised. (274)The Aboriginal question, which
was supported by all political parties, was overwhelmingly passed
with a majority in support in all States, and an overall majority
of 90.8 per cent-the largest ever majority for any referendum
proposal in Australia.(275) The Senate 'nexus' question
was opposed by some Liberal Senators and by the Democratic Labor
Party and was overwhelmingly defeated with a majority 'no' vote in
all but one State (NSW) and with an overall vote against of 59.8
per cent.(276) Electors distinguished between the two
questions, though exactly what the majority understood to be the
effect of the constitutional change in relation to Aborigines is
not clear.

Little, if any, of the public discussion of the
proposal, or the public arguments made in favour of the change,
were in the same terms as the parliamentary debates about the power
of the Commonwealth Parliament. In the media much of the discussion
focused on the counting of Aborigines in the census. The 'yes' case
argued that the proposal would remove words which discriminated
against Aboriginal people, and would allow the Commonwealth to
cooperate with the States to ensure that the Government's actions
would be 'in the best interests of the Aboriginal
people'.(277) What evidence there is from public opinion
polls indicates that most voters thought that the constitutional
change would result in a better deal for
Aborigines.(278)

The constitutional change had little immediate
impact on Indigenous Affairs. The Government which had sought the
change had no plans for its use.(279) In September 1967
the Prime Minister said in the Parliament that:

it is now possible for the Commonwealth
Parliament to legislate, but it does not mean that the States
automatically lose their powers. There is no intention on the part
of the Commonwealth that authority should be ... wrested from the
States... [W]hile the Commonwealth Parliament is now in a position
to make laws and to prevail should a conflict arise with the
States, the Commonwealth does not seek to intrude unnecessarily in
this field, or into areas of activity currently being dealt with by
the States.(280)

The apparent reticence of the Liberal-Country
Party Government to use the new power of the Parliament gave no
indication of the true significance of the change. Over the next
five years the Liberal-Country Party Government held to the view
that the States should continue to have the major role in
Aboriginal Affairs, but very gradually expanded the Commonwealth's
role.

By this time the focus of the campaign for
Aboriginal rights had shifted from the jurisdictional question to
substantive issues and it became impossible for the Commonwealth
Government and the Parliament not to be drawn into Aboriginal
Affairs. The Commonwealth was now confronted with new demands and
new issues. The push for full civil rights for Aborigines expanded
into a call for Indigenous rights. The political campaign for land
rights which had grown out of the Wave Hill and Yirrkala disputes
attracted national and international attention. The Yirrkala and
Wave Hill disputes which had always been within the Commonwealth's
jurisdiction-a fact which appeared to have been almost obscured by
the referendum campaign-increasingly put pressure on the
Commonwealth.

In 1973 the Whitlam Labor Government took steps
decisively to move the Commonwealth into an active role in
Aboriginal Affairs and since that time Aboriginal Affairs has been
an inescapable issue for Commonwealth Governments and the
Parliament. With the Racial Discrimination Act 1975,
Aboriginal Land Rights (NT) Act 1976, the Aboriginal
and Torres Strait Islanders Commission (ATSIC) Act 1989, the
Native Title Act 1993 and the Wik amendments to
it in 1998 the Parliament passed some of the most politically
controversial and socially important legislation in its hundred
year history. In the case of the ATSIC Act the Native Title Act and
the Wik amendments to that Act, more than with most legislation, it
was true to say that the Parliament was the forum in which the
legislation was made. The final content of the legislation was not
what was presented to the Parliament by the Government. The
legislative process which produced those laws was a tortuous and
difficult one in which redrafting, political manoeuvrings,
parliamentary debate and many rounds of negotiation within the
Parliament and with Aboriginal groups outside it were instrumental
in securing the necessary majority in both chambers.

This outcome was not part of the vision of the
framers of the Constitution. The federal model they adopted by the
framers left Indigenous affairs within the jurisdiction of the
States. The only provisions in the original Constitution relating
to Indigenous peoples were expressed in negative terms. The framers
of the Constitution did not, and could not have, anticipated that
Indigenous Affairs would become a national issue which would
periodically be central to the deliberations of the Commonwealth
Parliament.

Commonwealth of Australia, Bringing them Home: Report of
the National Enquiry into the Separation of Aboriginal and Torres
Strait Islander Children from Their Families, Human Rights and
Equal Opportunity Commission, Sydney, 1997.

G. Sawer, 'The Australian Constitution and the Australian
Aborigine', Federal Law Review, vol. 2, June 1966,
pp. 25-35 and John Chesterman and Brian Galligan, Citizens
without Rights: Aborigines and Australian Citizenship,
Cambridge University Press, Melbourne, 1997, pp. 70-2.

See Chesterman and Galligan, op. cit., pp. 67-73; G. Sawer,
'The Australian Constitution and the Australian Aborigine' and G.
Sawer, 'Grant of Franchise to Aborigines by the Commonwealth',
Appendix IV, House of Representatives, Report from the Select
Committee on Voting Rights of Aborigines: Part I, Report and
Minutes of Proceedings, Government Printer, 1961, pp. 38-9.

G. Sawer, 'The Australian Constitution and the Australian
Aborigine', Federal Law Review, vol. 2, June 1966.
See also G. Sawer, 'Grant of Franchise to Aborigines by the
Commonwealth' and K. H. Bailey, 'Voting Rights of Aboriginals',
Appendix V, House of Representatives, Report from the Select
Committee on Voting Rights of Aborigines: Part I, Report and
Minutes of Proceedings, Government Printer, 1961, pp. 40-1.

After 1967, when the words 'other than the aboriginal race in
any State' had been removed, the question of the extent of the
Commonwealth's powers under s. 51(xxvi) in relation to the States'
powers became a contentious matter, but in the period before 1967
Commonwealth laws which affected the rights and entitlements of
Aborigines were not problematic in relation to the boundaries of
Commonwealth and State powers.

G. Sawer argues that there is no clear answer to the question.
See 'Grant of Franchise to Aborigines by the Commonwealth,' p. 39
and Bailey, 'Voting Rights of Aboriginals'. In relation to s. 127
the Bureau of Statistics in publishing census data excluded
Aborigines but not Torres Strait Islanders. See also Sawer, 'The
Australian Constitution and the Australian Aborigine', op. cit.,
p. 26.

In both States at the time of Federation Aborigines who
fulfilled a freehold property qualification were exempted from the
restriction, but in both States this provision was subsequently
repealed. See Chesterman and Galligan, p. 66.

Mahon became a Minister in three Labor Governments-Postmaster
General 1904, Home Affairs 1908-9 and External Affairs 1914. In
1920 he became the first and only member to be expelled from the
Parliament. Mahon attacked British policy in Ireland in what were
seen to be extreme terms. Using the powers of the Parliament under
s. 49 of the Constitution, Prime Minister Hughes moved to have
Mahon expelled for making statements which were 'seditious and
disloyal' and 'inconsistent with the oath of allegiance which he
[had] taken,' Senate and House of Representatives,
Debates,, 11 November 1920, p. 6382, See pp.
6382-475. See House of Representatives Practice, J. A.
Pettifer, ed., Australian Government Publishing Service, Canberra,
1981, pp. 190-1, and H. J. Gibbney, 'Hugh Mahon
1857-1931' in B. Nairn and G. Searle, eds, Australian
Dictionary of Biography, vol. 10, 1891-1939, Melbourne
University Press, Melbourne, 1986, pp. 379-80.

Senate and House of Representatives, Debates, 26 July
1901, p. 3150.

ibid., p. 3150.

Senate and House of Representatives, Debates, vol.
III, 26 July 1902, p. 3152. See also Peter Biskup, Not Slaves,
Not Citizens: The Aboriginal Problems in Western Australia
1898-1954, University of Queensland Press, St. Lucia, 1973,
pp. 36-7.

Votes and Proceedings of the House of Representatives,
vol. 1, 1901-02, Government Printer, Victoria, p. lvi.

Commonwealth Franchise, no. 8 of 1902. An Act to
provide for an Uniform Federal Franchise, Clause 4. However, see
wording as printed in Senate and House of Representatives,
Debates, 30 May 1902, p. 13 145 which appears to have
wording different from that in the Act.

Senate and House of Representatives, Debates, vol. 59,
10 November 1910, p. 5992.

See Senate and House of Representatives, Debates, vol.
59, 10 November 1910, pp. 5999-6000.

Senate and House of Representatives, Debates, vol. 66,
4 October 1912, p. 3882 and 9 October 1912, p. 3987.

ibid., p. 3881.

Senate and House of Representatives, Debates, vol. 56,
31 August 1910, pp. 2273-8.

R. A. Hall, 'Aborigines and Torres Strait Islanders in the
Second World War' in D. Ball, ed., Aborigines in the Defence of
Australia, ANU Press, Botany, NSW, 1991, p. 32. The total
number of Aborigines serving in the First World War is unknown but
at least 300 from NSW, Victoria and Queensland enlisted in the
First AIF. The 'race' of soldiers was not recorded and some
Aborigines claimed to be some other race in order to escape the
authority of State Protectors who had the power to control their
earnings. Aboriginal soldiers had approximately the same casualty
rate as other soldiers and three received awards for gallantry. See
Hall, op. cit., pp. 32-3. See also D. Huggonson, 'The Dark
Diggers of the AIF', Australian Quarterly, Spring, 1989,
pp. 352-7.

Chesterman and Galligan, op. cit., p. 92.

ibid., p. 92.

Quoted in Chesterman and Galligan, op. cit., p. 92.

Quoted in Chesterman and Galligan, p. 97.

For example s. 4 of the Aborigines Act 1934-39 (SA)
defined an Aborigine as anyone who descended from the original
inhabitants of Australia. See J. Summers, 'Aborigines and
Government in the Twentieth Century' in Eric Richards, ed., The
Flinders History of Australia: Social History, Wakefield
Press, Adelaide, 1986, pp. 493-4.

The High Court did ultimately adopt the narrow meaning of s.
41. In R v Pearson; ex parte Sipka, 1983, 152 CLR 254 it
held that s. 41 only guaranteed the right to vote in Commonwealth
elections of those individuals who had a right to vote in State
elections in 1902 when the Commonwealth Parliament first legislated
for the franchise for Commonwealth elections. This interpretation
makes s. 41 a 'transitional' provision which has no force beyond
the lifetime of those individuals who had the right to vote in
State elections before the Federal Parliament legislated for the
Commonwealth franchise. See Michael Coper, Encounters with the
Australian Constitution, CCH Australia Ltd, Sydney,
1987,
pp. 335-8.

Jiro Muramats v The Commonwealth Electoral Officer for the
State of Western Australia (1923) 32 CLR, pp. 500-8.

ibid., at p. 504. Emphasis added. See also p. 505.

Stretton and Finnimore, op. cit., p. 526-7.

ibid., pp. 528-9.

Chesterman and Galligan, op. cit., p. 103.

Senate and House of Representatives, Debates, vol.
110, 2 July 1925, p. 617.

ibid., pp. 691-2 and 17 September 1925, pp. 2506-7.

In the House of Representatives the Bill was amended to extend
the franchise to an additional narrow range of naturalised British
Subjects resident in Australia, Senate and House of
Representatives, Debates, vol. 111, 23 September
1925, p. 2603.

The question of the use of delegated legislative power did
become an important issue when, in later years, Regulations were
used to set conditions for the employment of Aborigines. In April
1930 Senator Sir Hal Colebatch moved for the disallowance of the
Aboriginal Ordinance (no. 9 of 1918) in an effort to have it
amended. Under the Ordinance (subsection 67 (2) and (3))
regulations could be made by the Administrator, subject to the
Minister's approval, and it had been argued that there was no
requirement for the regulations to be tabled in the Parliament.
Senator Colebatch said that the view 'that [regulation and
ordinances] may never be laid on the table and still have the force
of law, is to argue that Parliament is prepared to abrogate its
power as the final legislative authority'. See Senate and House of
Representatives, Debates, vol. 123, 9 April 1930, p. 957.
Senator Colebatch was concerned that regulations relating to the
employment of 'half-castes' in the Northern Territory had not been
tabled. The Government gave assurances that no further regulations
would be made under the Ordinance and a new Ordinance requiring the
tabling of Regulations under it, would be enacted. Senate and House
of Representatives, Debates, vol. 123, 9 April 1930,
pp. 956-64.

The North Australia Act 1926 divided the Territory
into North Australia and Central Australia. Each had a Government
Resident and separate administrative structure. This was reversed
by two Northern Territory (Administration) Acts in 1931 which
re-established the single Northern Territory. An attempt to
introduce an elected Legislative Council with limited powers to
make Ordinances was rejected by the Senate and the Territory
continued to be run by an Administrator responsible to the
Minister. It was not until 1947 that the Act was amended to
establish a Legislative Council, with six elected and seven
appointed members, with limited powers to make Ordinances. The
elected component was gradually increased, until 1974 when a fully
elected Legislative Council was established. Self-government was
achieved in 1978, but the Commonwealth Parliament still had the
capacity to legislate on any matter in relation to the Territory.
See Alistair Heatley, Almost Australians: The Politics of
Northern Territory Self-Government, ANU North Australia
Research Unit, Darwin, 1990, pp. 98-103.

Senate and House of Representatives, Debates, vol. 59,
16 November 1910, p 6269, see also 9 November 1910, pp.
5331-3.

In 1922 the Northern Territory was granted one representative
in the House of Representatives but with no voting rights. In 1936
the member for the Northern Territory was given the right to vote
on motions for the disallowance of Northern Territory Ordinances.
It was not until 1968 that the member for the Northern Territory
was given full voting rights in the House of Representatives. In
1974 the Northern Territory obtained representation in the Senate
with the right to elect two Senators.

Chesterman and Galligan, op. cit., p. 145.

Commonwealth of Australia, Bringing Them Home: Report of
the National Inquiry into the Separation of Aboriginal and Torres
Strait Islander Children from Their Families, pp. 132-40. See
also B. Cummings, Take This Child: From Kahlin Compound to the
Retta Dixon Children's Home, Aboriginal Studies Press,
Canberra, 1990, pp. 1-53 and A. Markus, Governing Savages,
Allen and Unwin, Sydney, 1990, pp. 88-107.

For a discussion of the exemption system see Rowley,
Destruction of Aboriginal Society, pp. 360-1.

See Senate and House of Representatives, Debates, vol.
65, 1 August 1912, pp. 1523-36.

Rowley, The Remote Aborigines, op. cit., pp. 200-4.
The opposition to converting leasehold to freehold did not relate
to Aboriginal rights but was based largely on the need for proper
supervision of leases to prevent negligent land use, and to prevent
high capital gains being made by subdivision of the large
properties held by overseas companies.

Senate and House of Representatives, Debates, vol.
117, 6 December 1927, p. 2708.

J. W. Bleakley, 'The Aboriginals and Half-Castes of Central
Australia and North Australia: Report 1928', Commonwealth
Parliamentary Paper no. 21, 1929. The Northern Territory Act
1926 had established a system of government by Commission and
divided the Territory into Central and North Australia with
separate administrations. In 1931 the process was reversed with the
re-establishment of a single Territory under an Administrator
responsible to a Minister.

For a detailed analysis of the Bleakley Report see Rowley,
The Destruction of Aboriginal Society, ANU Press,
Canberra, 1971, pp. 259-80; Rowena MacDonald, Between Two
Worlds: The Commonwealth Government and the Removal of Aboriginal
Children of Part Descent in the Northern Territory, IAD Press,
Alice Springs, 1995, pp. 20-5.

Parliament of the Commonwealth of Australia, Votes and
Proceedings of the House of Representatives, 7 February 1929,
p. 9, Journals of the Senate, 7 February 1929, p. 8. See
also Hartwig, pp. 46, 48 and 68.

Senate and House of Representatives, Debates, vol.
142, 14 November 1933, pp. 4446-7.

The understanding of the Aborigines appears to have been quite
different from that of the Administration and they felt betrayed
when they were chained and imprisoned. See Rowley, op. cit.,
p. 291 and T. Egan, A Justice All Their Own: The Caledon
Bay and Woolah Island Killings, 1932-1933, Melbourne
University Press, Melbourne, 1996.

Egan, op. cit., p. 97. For a discussion, the press coverage of
it, the remark, and other public comments by Judge Wills see Egan,
op. cit., pp. 96-100, and A. Markus, Governing Savages,
pp. 108-12.

Tuckiar v. the King (1934) 52 CLR 333.

ibid., p. 349.

ibid., at p. 348 and 352.

See Rowley, Destruction of Aboriginal Society, op.
cit., pp. 293-7.

A. Powell, Far Country: A Short History of the Northern
Territory, Melbourne University Press, Melbourne, 1982, p.
180.

Rowley, Destruction of Aboriginal Society, op. cit.,
p. 259.

Senate and House of Representatives, Debates, vol.
128, 19 March 1931, p. 377. The motion was to disallow North
Australian Ordinance no. 18 of 1931, and Central Australian
Ordinance no. 15 of 1930, made under The North Australia Act
1926.

Senate and House of Representatives, Debates, vol.
128, 19 March 1931, p. 378.

See Senate and House of Representatives, Debates, vol.
128, 19 March 1931, pp. 375-97.

Senate and House of Representatives, Debates, vol.
127, 11 December 1930, pp. 1298 and 1311. See also Powell, op.
cit., p. 170.

Senate and House of Representatives, Debates, vol.
127, 11 December 1930, pp. 1308-9. For an account of protests by
unemployed workers in Darwin in 1930-31, see Powell, op. cit., pp.
170-2.

For an account of the growth in restrictions, and control of
Aborigines lives, under State laws, and the widening scope of those
laws see Andrew Markus, 'Under the Act' in Bill Gammage and Peter
Spearritt, eds, Australians 1938, Fairfax, Symes and
Weldon Associates, Sydney, 1987, pp. 47-54.

R. M. and C. H. Berndt, End of an Era: Aboriginal Labour in
the Northern Territory, Australian Institute of Aboriginal
Studies, Canberra, 1987, pp. xi and pp. 155-77. See also Hall, p.
53, and Powell, pp. 214-7.

See R. Hall, 'Aborigines and Torres Strait Islanders in the
Second World War', in D. Ball, ed., Aborigines in the
Defence of Australia, ANU Press, Sydney, 1991, p. 36.

Quoted in Hall, op. cit., p. 34.

See Hall, op. cit., pp. 37-40 and Powell, op. cit., pp. 216-7.

See Hall, op. cit., pp. 35-59.

Senate and House of Representatives, Debates, vol.
177, 11 February 1944, p. 152, and vol. 178, 15 and 16 March 1944,
p. 1393.

Section 4 of the Invalid and Old-Age Pension Act1942.

Senate and House of Representatives, Debates, vol.
192, 30 May 1947, p. 3221.

Senate and House of Representatives, Debates, vol.
166, 3 April 1941, p. 703. For an account of the operation of s. 41
and moves within the Commonwealth Public Service on the Aboriginal
franchise see Stretton and Finnimore, pp. 531-5. cf R. D. Lumb
and
G. A. Moens, The Constitution of the Commonwealth of Australia
Annotated, 5th ed., Butterworths, Sydney, 1995, pp. 92-4. In
R. V. Pearson, ex parte Sipka, 1983, 152 CLR 254, the High
Court opted for the narrow Quick and Garran interpretation of s.
41. See also Michael Coper, Encounters with the Australian
Constitution, CCH Australia, North Ryde NSW, 1987, pp. 335-8.

Senate and House of Representatives, Debates, vol 187,
28 June 1946, pp. 2061-2.

Senate and House of Representatives, Debates, vol 187,
28 June 1946, p. 2064.

See commentary by Stretton and Finnimore, op. cit., p. 534.

Unlike Scullin, the Curtin and Chifley Governments had a
majority in the Senate from July 1944.

Senate and House of Representatives, Debates, vol 184,
24 July 1945, p. 4381. The question was on notice from Senator
Collett (Liberal, Western Australia).

Senate and House of Representatives, Debates, vol.
208, 8 June 1950, pp. 3976-7.

House of Representatives, Report of the Select Committee on
Voting Rights of Aborigines: part I-Report and Minutes of
Proceedings, Government Printer, Canberra, 1961, p. 8.

Social Services Act 1959 s. 24. For a discussion of
the application of the Act see Chesterman and Galligan, op. cit.,
p. 165 and J. C. Altman and W. Saunders, 'From exclusion to
Dependence: Aborigines and the welfare State in Australia' in J.
Dixon and R. P. Scheurell eds, Social Welfare with
Indigenous People, Routledge, London, 1995, pp. 209.

House of Representatives, Debates, vol. 24, 3
September 1959, p. 930.

House of Representatives, Debates, vol. 52, 15
September 1966, p. 935. Although the wording of the legislation no
longer contained any specific reference to Aborigines other
provisions did affect the eligibility of Aborigines to benefits.
Under provisions which allowed benefits to be paid to third parties
child endowment and other entitlements of Aborigines living on
missions and reserves were paid to the controlling authorities and
Aborigines in remote areas did not qualify for unemployment
benefits because of their circumstances.

See Chesterman and Galligan, op. cit., pp. 174-5.

Senate and House of Representatives, Debates, vol.
218, 6 August 1952, p. 45.

ibid., pp. 46-7.

ibid., p. 168.

The Northern Territory had been criticised in the press for
allowing Aboriginal artists to be exploited by 'unauthorised' art
dealers who it was claimed had made huge profits by offering
artists immediate cash for paintings which could be sold later for
a mark-up of as much as 400 per cent. See J. D. Batty,
Namatjira, Wanderer Between Two Worlds, Rigby, Adelaide,
1976, pp. 91-3 and T. Rowse, 'Painting From Memory: Art, Economics
and Citizenship 1940-60' in J. Hardy, J. V. S. Megaw and M. R.
Megaw, eds, The Heritage of Namatjira: The Watercolourists of
Central Australia, William Heineman, Melbourne, 1992, pp.
177-200.

See reference in Namatjira v Raabe 100 CLR 664 at p.
669 to the claim by the Crown 'that the real purpose of [the
Ordinance] is beneficial and not adverse'.

Quoted in Hughes, op. cit., p. 303.

The Northern Territory Legislative Council at this time was
composed of six elected and seven appointed members. The
administration could have ignored the objection of the elected
members but it chose to negotiate to achieve an outcome which was
more acceptable to Territorians. For an account of the process in
the Northern Territory Legislative Council see F. S. Stevens,
'Parliamentary Attitudes' in F. S. Stevens ed., Racism: The
Australian Experience, A Study of Race Prejudice in Australia, vol.
2, Black Versus White, Australia and New Zealand Book Company,
Sydney, 1972, pp. 117-21.

Namatjira v Raabe, 100 CLR, p. 664. An interesting
feature of the judgement is the extent to which effectively showed
that the Ordinance was not and was not meant to be 'race neutral'.

For an account of the extent of Namatjira's fame see Batty, op.
cit., pp. 33-158.

Newspaper surveys of the time indicate that there was a 93 per
cent recognition of Namatjira and 30 per cent of those surveyed
believed he should not have been gaoled. See S. Bennett,
Aborigines and Political Power, Allen and Unwin, Sydney,
1989, p. 7.

House of Representatives, Debates, vol. 22, 17 March
1959, p. 644-5.

For a discussion of the Social Welfare Ordinance 1964 and of
the debate in the Northern Territory Legislative Council on the
Ordinance see Rowley, The Remote Aborigines, op. cit., pp.
198 and 308.

Commonwealth of Australia, Report from the Select Committee on
Grievances of Yirrkala Aborigines, Arnhem Land Reserve, part
I-Report and Minutes of Proceedings, Government Printer,
Canberra, 1963, p. 5.

For details of the different rates and allowances for different
categories of workers see Rowley, The Remote Aborigines,
op. cit., p. 300.

See Rowley, The Remote Aborigines, op. cit., pp.
324-5, Stanner, 'Industrial Justice in the Never-Never' p. 45 and
B. Attwood and A. Markus, The 1967 Referendum, Or When
Aborigines Didn't Get the Vote, Australian Institute of
Aboriginal and Torres Strait Islander Studies, Canberra, 1997, p.
31.

For an account of the strike and associated events see Frank
Hardy, The Unlikely Australians, Nelson, Melbourne, 1968.

Letter from Vincent Lingiari, a leader of the Gurindji, in the
Australian, 18 October 1966, quoted in Rowley, The
Remote Aborigines, op. cit., p. 341. See also T. Egan,
'Treated Like a Dog' in A. Wright, ed., Take Power Like
This Old Man Here: An Anthology Celebrating Twenty Years of Land
Rights in Central Australia 1977-1997, IAD Press, Alice
Springs, 1998, pp. 11-3.

See Coombs, op. cit., pp. 159-83 and I. Palmer, Buying Back
the Land: Organisational Struggle and the Aboriginal Land Fund
Commission, Aboriginal Studies Press, Canberra, 1988, p. 9-26
for accounts of the Government's handling of the land rights issue.

House of Representatives, Debates, vol. 69, 3
September 1970, p. 968. See pp. 967-71 for a considered statement
of the Government's position.

The Central Aboriginal Reserves were adjacent areas which had
been reserved for Aborigines in three different jurisdictions,
Northern Territory, South Australia, and Western Australia. The
total area of the Reserves was 259 000 square kilometres.

Senate and House of Representatives, Debates, vol.
189, 22 November 1946, pp. 527-9.

For an account of the public debate see P. Morton, Fire
Across the Desert: Woomera and the Anglo-Australian Joint Project.
1946-1980, Australian Government Publishing Service, Canberra,
1989, pp. 69-77.

For an account of the operation of Ernabella Mission see W.
Hilliard, The People in Between: The Pitjantjatjara People of
Ernabella, Hodder and Stoughton, London, 1968, chapters 6-16;
C. Duguid, Doctor and the Aborigines, Rigby,
Adelaide, 1972, chapters 10-18; C. Duguid, Ernabella: The
Medical Patrol, Brown, Prior and Anderson, Melbourne, 1939;
Board of Missions of the Presbyterian Church of Australia,
Ernabella, Brown, Prior and Anderson, Melbourne, 1937; C.
Duguid, Ernabella, Origin and the First Ten Years: A Short
Historical Sketch, Processed, circa. 1953.

ibid., p. 1826.

ibid., p. 1835-6.

See above.

The Committee was made up as follows: L. F. Loder,
Director-General of Works and Housing, Lieutenant-General J. F.
Evetts, representing the British Long Range Weapons Organisation in
Australia, F. H. Moy, Director of Native Affairs for the Northern
Territory, representing the Department of the Interior, W. R.
Panhall, Secretary, Aborigines Protection Board, South Australia,
representing the South Australian Government, A. O. Neville,
Representing the Western Australian Government, and Professor A. P.
Elkin, Professor of Anthropology, representing the Australian
National Research Council. Senate and House of Representatives,
Debates, vol. 191, 1 May 1947, pp. 1830-1.

Senate and House of Representatives, Debates, vol.
191, 1 May 1947, p. 1832.

ibid., p. 1832.

ibid., p. 1832.

ibid., p. 1832.

See Royal Commission into British Nuclear Tests in Australia,
Report, vol. 1, Australian Government Publishing Service, Canberra
1985; R. Milliken, No Conceivable Injury: The Story of Britain
and Australia's Atomic Coverup, Penguin, Ringwood, Victoria,
chapter 3; and J. L. Symonds (for the Department of
Resources and Energy), A History of British Atomic Tests in
Australia, Australian Government Publishing Service, Canberra,
1985, pp. 5-9 and 62-3.

Royal Commission into British Nuclear Test in Australia,
Report.

There were a total of 12 nuclear tests as follows:

Operation Hurricane

Monte Bello Islands

3 October 1952

Operation Totem

Emu

15 October 1953

Emu

27 October 1953

Operation Mosaic

Monte Bello Islands

16 May 1956

Monte Bello Islands

19 June 1956

Operation Buffalo

Maralinga

27 September 1956

Maralinga

4 October 1956

Maralinga

11 October 1956

Maralinga

22 October 1956

Operation Antler

Maralinga

14 September 1957

Maralinga

25 September 1957

Maralinga

9 October 1957

British Tests of Hydrogen Bombs were also conducted in 1957 and
1958 on Malden Island and Christmas Island in the Pacific
Ocean.

Further tests involving radioactive material, the so called
'Minor Trials', were also conducted at Maralinga and Emu until
1963. See Milliken, op. cit., pp. ix-xi.

Altman, J. C. and Saunders, W., 'From Exclusion to Dependence:
Aborigines and the Welfare State in Australia' in J. Dixon and R.
P. Scheurell, eds, Social Welfare with Indigenous People,
Routledge, London, 1995.

Attwood, B. and Markus, A., The 1967
Referendum, Or When Aborigines Didn't Get the Vote, Australian
Institute of Aboriginal and Torres Strait Islander Studies,
Canberra 1997.

Bailey, K. H., 'Voting Rights of Aboriginals',
Appendix V, House of Representatives, Report of the Select
Committee on Voting Rights of Aborigines: Part I-Reports and
Minutes of Proceedings, Government Printer, 1961.

Bandler, F., Turning the Tide: A Personal
History of the Federal Council for the Advancement of Aborigines
and Torres Strait Islanders, Aboriginal Studies Press,
Canberra, 1989.

Commonwealth of Australia, Bringing Them
Home; Report of the National Inquiry into the Separation of
Aboriginal and Torres Strait Islander Children from Their
Families, Human Rights and Equal Opportunity Commission,
Sydney, 1997.

Commonwealth of Australia, The Northern
Territory of Australia, Report on Expedition to Arnhem Land,
1936-37 by Dr Donald Thomson, Government Printer, Canberra,
1939.

Commonwealth of Australia, Report of the
Royal Commision on the Constitution, 1929, Government Printer,
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